1 of 38 DOCUMENTS 

LEVY COURT OF BALTIMORE COUNTY'S Lessee vs. GWYNN.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

4 H. & J. 227; 1816 Md. LEXIS 13 

June, 1816, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court. Ejectment for a lot of ground in the city of Baltimore, contained within the following metes and bounds, &c. The defendant, (now appellee,) took general defence, and the general issue was joined.

At the trial the plaintiff read in evidence the following agreement between the parties: "It is admitted, that the lot of ground described in the declaration is included within the lines of the ground surveyed and laid out for the purpose of erecting thereon a court-house and prison for Baltimore county, under the direction of the commissioners appointed by act of assembly for that purpose. And also, that the ground so declared for is included within the lines and bounds of lots No. 1 and 2, parts of lot No. 11, in Baltimore Town, as laid off and sold by the commissioners appointed for the purpose of preserving confiscated British property, to John M'Clure; and that Edward Fotteral, formerly of Baltimore Town, was in his life-time seized in fee of lot No. 11, and died seized thereof. That the ground so declared for is part of said lot No. 11, of which part said Fotteral died seized, prior to the survey and condemnation of the same for the court-house [**2]  and prison above mentioned." The plaintiff also read in evidence, by consent of the defendant, an act of the general assembly, passed at May session 1768, ch. 14, entitled, "An act for erecting a court-house and public prison for Baltimore county, in the Town of Baltimore, and for making sale of the old court-house and prison." By which act John Beale Bordley, &c. "or the major part of them, are empowered to apportion and lay out not more than one acre and half an acre of the upper part of Calvert-street, next Jones's Falls, and to agree with the owners thereof for the purchase, or if the owners will not or cannot legally contract with them, the said commissioners may issue their warrant to the sheriff of the county for summoning a jury of not less than twelve freeholders, to appear before them at Baltimore Town, upon a certain day, to inquire to whom the land belongs, the value thereof, and what damage the owner or owners will sustain by being deprived thereof. The sum assessed by the said jury is to be paid by the commissioners; and the payment for the land shall invest the justices of Baltimore county, and their successors, with an estate in fee simple, for the use of the county [**3]  for ever. The commissioners are to cause the land to be laid out with boundaries by the surveyor, and a certificate thereof to be entered on the county records, they are then to contract for building on the said land a court-house and a prison, with a prison yard and other conveniences." The plaintiff also produced a paper, purporting to be an inquisition, taken before four of the commissioners named in the said act of assembly, being the major part of the commissioners, and a plat and certificate made out and returned by order of the said four commissioners, which paper was lodged by the said four commissioners in the clerk's office of Baltimore county court, more than forty years ago, and was admitted by the parties to have been signed and sealed by the said four commissioners, and by the persons whose names it bears as jurors, viz. "An inquisition indented and taken at Baltimore Town, in Baltimore county, before John Moale, Robert Alexander, William Smith and Andrew Buchanan, commissioners appointed by an act of assembly, entitled, An act for erecting a court house and public prison for Baltimore county, in the town of Baltimore, and for making sale of the old court house and prison,  [**4]  by the oaths of John Smith," &c. &c. "good and lawful men of the county aforesaid, jurymen duly summoned, sworn, and charged to say, upon their oaths, who is or are the owner or owners of the land laid off and included in the survey hereunto annexed, made by order of the said commissioners, agreeable to the said act, and what is the value of the said land, and what damages such owner or owners will sustain--Do upon their oaths say, that thirty square perches, part of the land included in the said survey, is part of a lot of land distinguished by the No. 11, in the plat of Baltimore town, and that the heirs of Edward Fotterell is owner thereof, and that the same is of the value of thirty-seven pounds fifteen shillings current money; and that one acre and one quarter of an acre and four perches and an half perch, other part of the land included in the said survey, is part of the lots No. 8," &c. "and that A. L is owner thereof, and that the same is of the value of £  82, and that 72 and an half perches, the remainder of the said land, is part of Calvert street, in Baltimore town, and that the said land will not sustain any damage. In testimony whereof, as well the said commissioners,  [**5]  as the said jurors, have hereunto set their hands and seals this 10th day of February, 1769." Signed and sealed, &c. by the commissioners and jurors. "17th day of April 1770, Received of the commissioners, for building the court house and prison, the sum of thirty-seven pounds fifteen shillings current money, the sum mentioned in the within inquisition, as the value of the land therein specified to be the property of Edward Fotterell's heirs--received by virtue of a power of attorney from Robert Taaff, and Achsah his wife, the daughter and heir at law of the said Edward Fotterell.

John Flanagan."

The plat and certificate made by James Everett, deputy surveyor of Baltimore county, dated the 15th of December, 1768, also follow, containing one acre and seventy-four and a half square perches of land, 72 1/2 square perches of which is part of Calvert street. The plaintiff also gave in evidence, that the persons whose names purport to be signed to the said paper as jurors to make the said inquisition, were inhabitants of the said county at the time when the inquisition purports to have been made, and then were among the most substantial freeholders thereof. He also gave in evidence,  [**6]  by William Smith, one of the said four commissioners, who was sworn as a witness in this cause, that the said four commissioners met under and by virtue of the said act of assembly, in order to execute the powers thereby vested in them, and did, as the said witness believed, proceed regularly in the execution thereof, according to the directions of the said act, but he had no particular recollection of the particular acts done by them further than his knowledge of his and their signatures, and of some of the jurors. The plaintiff also gave in evidence, that the writing endorsed on the said paper, purporting to be a receipt by John Flanagan from the commissioners for building the court house and prison, for £  37 15 0 current money, was signed by Flanagan, who declared himself to be, and was always reputed and acted as the agent for Robert Taaffee, before and during some time after the year 1770, and that before and during the year 1770, Robert Taaffee, and Achsah his wife, which Achsah was the only surviving child and heir at law of Edward Fotterell then deceased, resided in the kingdom of Ireland. He also gave in evidence, that on the 2d of March, 1796, the clerk of Baltimore county [**7]  court did, of his own accord, enter and record the said paper and endorsements, for safe keeping and preservation, among the land records of Baltimore county; said paper having until that time, and ever since, remained in his office and keeping, where the said paper was, during the whole of that time, occasionally, and from time to time referred to by parties, whose property was affected thereby, to ascertain the limits of the public grounds. He also gave in evidence, that the commissioners named in the said act of assembly did, in pursuance thereof, immediately, or soon after the date of the said paper, proceed to erect, and did erect, on a part of the ground mentioned and described in the said paper as having been condemned in pursuance of the said act, a court-house and gaol for Baltimore county, which were for a long time used and occupied as such, and which court-house still continues to be so occupied, a new court-house for the said county having been since began, but not yet finished, on that part of the said ground, which was at first occupied by the said gaol; but neither the said court-house nor gaol, or any part of them, were upon the premises in the declaration in this [**8]  case mentioned. He also gave in evidence, that Daniel Chamier was sheriff of Baltimore county during the year 1769; that he left this state about the year 1775, and never returned, and has been dead many years; that his official papers, which were in his possession, are lost. That all the commissioners and jurors before named, except William Smith, are dead. The plaintiff then offered to read to the jury the said paper, and the receipt thereon endorsed, as evidence to prove that the premises in the declaration mentioned, being part of the ground mentioned and described in and by the said paper, were vested in the justices of Baltimore county for the time being, and their successors, in fee simple, for the use of the said county, pursuant to the provisions of the said act of assembly. The defendant then moved the court to direct the jury, that the said paper, so offered as aforesaid, is not competent evidence for the purpose for which it was offered. Of which opinion the Court [Nicholson, Ch. J.] was, and directed the jury accordingly. The plaintiff excepted; and the verdict and judgment being against him, he appealed to this court.  

DISPOSITION:
AFFIRMED.  

HEADNOTES:

Commissioners were appointed by the act of 1768, ch. 14, to lay out not more than one acre and an half of ground in Baltimore, and to agree with the owner thereof for the purchase, or if the owner would not or could not legally contract with them, they were authorized to issue their warrant to the sheriff for summoning a jury, not less than 12 freeholders, to appear before them at, &c. on, &c. to inquire to whom the land belonged, the value thereof, and what damages the owner would sustain by being deprived thereof The sum assessed to be paid by the commissioners, and the payment for the land to invest the justices of Baltimore county, and then successors, with an estate in fee simple for the use of the county. The commissioners were to cause the land to be laid out with boundaries by the surveyor, and a certificate thereof to be entered on the county records. They were then to contract for building on the land a court-house and a prison, with a prison yard, and other conveniences The commissioners returned an inquisition, taken before them, also a plot and explanation thereof, by which it appeared, that one acre and a half and 67 square perches, were laid out. It did not appear that any attempt was made to agree with the owner of the land, nor that any warrant issued to summon a jury. The inquisition did not show that the jurors were freeholders. The jury did not find who was the owner of the whole land, and what damages would be sustained They found the owner and value as to part only. There were no boundaries fixed to the land surveyed, and it did not appear that the land condemned was the land surveyed. The survey was not made by the surveyor, but by a deputy. The proceedings were lodged in the office of the clerk of the county court, but not recorded. Evidence was given as to the signatures of the jurors, and that they were all freeholders; one of the commissioners, (the others being dead,) proved that they not under the act in order to execute it, and did, as he believed, proceed regularly in the execution thereof, but he had no particular recollection of the acts done by them, further than his knowledge of his and their signatures, and of the signatures of some of the jurors A court-house and person were erected on part of the ground, but not on that in dispute. The inquisition and plot, &c. were recorded in 1796, for safe keeping, by the clerk of the county court, it having remained in his office unrecorded until then. On an ejectment brought by the levy court to recover a part of the ground so condemned--Held, that the said proceedings were not evidence to prove that the premises, mentioned in the declaration, and described in such proceedings, were vested in the justices of Baltimore county for the time being, and their successors, in fee simple, for the use of the county, pursuant to the said act of assembly.  

COUNSEL:
Harper, for the Appellant. Although [**9]  the inquisition may not be strictly according to the act of assembly under which it was taken, yet it is substantially correct, and length of time, payment of the money under it, and the acquiescence of the parties, cures all defects, if any existed.

W. Dorsey and Winder, for the Appellee. Where a power or authority is specially delegated, it must be strictly pursued, and it must appear on the face of the proceedings that it was so pursued. They referred to Kerr et al. vs. The State use of the Levy Court, &c. 3 Harr. & Johns. 560. Ellicott et al. vs. The Levy Court, &c. 1 Harr. & Johns. 359. Quynn vs. The State use Pue et al. Ibid 36. By the act, under which the inquisition now under consideration was taken, a special authority was delegated-- 1. The commissioners were to lay out one acre and an half, instead of which they laid out 307 square perches, or one acre and an half and 67 square perches. 2. It does not appear that any attempt to agree with the parties, who owned the land, was made by the commissioners. 3. Nor that any warrant issued to summon the jury. 4. The inquisition does not show that the jurors were freeholders. 5. The jury were directed by the act to find who [**10]  were the owners of the land, and what damages would be sustained. They find the owner and value as to part, but say nothing as to the residue. They find, that the heirs of E. Fotterell were the owners, when they should have said who those heirs were. 6. The commissioners paid Flanagan when there was no evidence that he was the agent of Fotterell's heirs. 7. The commissioners were required to have the land surveyed and boundaries fixed. This was not done, nor does it appear that the land condemned was ever surveyed, or if surveyed, that it was the land which was condemned. If the survey which was made is legal, yet there are no boundaries stated in the certificate. There are blanks left, supposed to be intended to be filled up with a description of the boundaries. 8. The surveyor of Baltimore county was to make the survey, yet it was done by a deputy surveyor, who refers to an act different from the one which passed. 9. The proceedings were not recorded at the instance of the commissioners. They were lodged in the office, but by whom is not known. If all or any of these objections are held to be sufficient, the paper could not be read in evidence. They referred to Rex vs. Sparling,  [**11]  1 Stra. 497. Rex vs. Jarvis, 1 Burr. 153; and Rex vs. Croke, 1 Cowp. 26, 27, 28, 29.

Harper, in reply. 1. The lines of the survey include more than an acre and an half, but 72 perches are part of Calvert street, and the act meant that the street should be excluded. 2. This objection cannot be taken advantage of by strangers. The immediate parties acquiesced at the time; they agreed to the proceedings, and received the valuation. It may be presumed, after a lapse of 40 years, that the parties were consulted. The daughter of Fotterell was a feme covert, living in Ireland, and she could not be consulted. 3. There must have been a warrant, as its effect was produced by the appearance of the jury, who would not have appeared without being summoned. 4. The evidence given at the trial was, that the jurors were freeholders, and the defect of the inquisition is supplied by the evidence. It would be presumed that they were freeholders if there was no evidence that they were. 5. It was not certain at the time who were the heirs of Fotterell; and being named as heirs is quite sufficient. 6. If the proper person was not paid, the person entitled would have applied, and as no person has applied,  [**12]  the presumption is that Flanagan had authority to receive the money. 7. It is to be presumed that boundaries were fixed, and that the commissioners did their duty, and that they placed boundaries, which have since been removed, by cutting away the ground on which the court-house stood, which was upwards of 20 feet above where the street was cut as it now runs. The act does not say the surveyor was to fix boundaries, so that the blanks left in his certificate have nothing to do with the fixing of the boundaries by the commissioners. 8. The act of a sworn deputy is the act of his principal. He described the substance of the law, and did not refer to it by the title. 9. The proceedings were put into the proper office, and it must be presumed that they were placed there by the commissioners for the purpose of being recorded. Why placed there unless for that purpose? The clerk's omitting to record them is not to invalidate the copy produced. The proceedings being recorded by the present clerk shows that he considered it to have been the duty of his predecessor. There can be no doubt that special authorities in recent transactions must appear to have been strictly pursued. But from length [**13]  of time, acquiescence, &c. a strict compliance will be presumed, and all defects cured. The defendant does not claim under any of the original owners or holders, and has therefore no right to call for a strict compliance with an authority of so long standing. This proceeding is to be considered as a conveyance, and the lessors of the plaintiff entitled to all that aid which every other conveyance is entitled to from presumption by length of time.  

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

OPINION:

 [*232]  JUDGMENT AFFIRMED.  

2 of 38 DOCUMENTS 

HANEY vs. WADDLE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

3 H. & J. 557; 1815 Md. LEXIS 27 

May, 1815, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court. This was a petition for freedom. At the trial the petitioner, (now appellee,) produced a witness, who proved that John Haney, the brother of the defendant, (now appellant,) wrote a letter to him from St. Mary's county in this state, where he resided, and sent it by the petitioner, who was then living in Virginia, where he was born and raised, and by whom it was delivered to the witness in the city of Baltimore, where the witness resided, sometime in the month of February 1810, and shortly after the said letter was written. The letter contained a request that the witness would keep the petitioner until he, John Haney, or his brother Samuel Haney, should arrive in Baltimore; and it also stated, that the petitioner was the property of his said brother, who was under age, and that he was the guardian of his said brother. That accordingly the witness did keep the petitioner in his service from that time for about two months and an half, when the defendant arrived in Baltimore from St. Mary's county, where he was bound in 1803 by his father, for seven years, to learn the business of a pilot, and where he then lived. That the defendant then called on the [**2]  witness, and received the hire for the time the petitioner had been with the witness. That the defendant left the petitioner with Robert Long, his brother-in-law, who resided in Baltimore, and who some short time afterwards hired the petitioner to Joseph Nevitt, the captain and owner of the Alexandria packet, which sailed between Alexandria and Baltimore; that the said packet was licensed at the port of Alexandria, and the captain and owner resided and lived in Alexandria. That sometime after the petitioner was so hired to Nevitt, he met with the defendant at Baltimore, who agreed that he, Nevitt, might keep the petitioner in his hire and service until the 17th of December 1810, and longer if he chose. That in consequence thereof Nevitt did keep the petitioner in his service until the 17th of December 1810, when being with him in his packet at Baltimore, he deserted and run away from him, and shortly after filed this petition for his freedom. The petitioner further proved, that he was born and raised in the state of Virginia, and was brought into this state from the state of Virginia in the manner herein before stated. The defendant then proved, that the petitioner was born the slave [**3]  of the defendant's father, and was given to the defendant by his father, who always has resided, and still resides, in the state of Virginia. That the defendant arrived at the age of 21 years on the 13th of December 1810, at which time his apprenticeship expired; and has since followed his business as a pilot in the waters of the Chesapeake Bay, and was sometimes at Norfolk, sometimes at Alexandria, sometimes at St. Mary's, and sometimes at Baltimore, just as his business called him; was an unmarried man, and had no fixed place of residence. He then prayed the court to direct the jury, that if they believed the aforegoing testimony, the petitioner was not entitled to recover. But the Court, [Nicholson, Ch. J.] was of opinion, and so directed the jury, that if they believed that the petitioner was born and raised in the state of Virginia, and continued to reside there until the month of February 1810, that he was then sent by the defendant, or with his consent and approbation, to Baltimore, to be hired, that he was so hired and resided in Baltimore, and that the defendant himself was not a resident of this state, and did not move into this state for the purpose of residing here, that [**4]  the circumstance of the defendant's being under the age of 21 years could not operate against the petitioner. That a minor had no other authority to import slaves into this state than an adult, and that neither the one nor the other had such authority, except in the special cases provided for in the several acts of assembly of this state, none of which embraced this case. The court therefore refused the defendant's prayer. The defendant excepted; and the verdict and judgment being against him, he appealed to this court, where the case was argued before CHASE, Ch. J. and BUCHANAN, EARLE, JOHNSON, and MARTIN, J. by 

DISPOSITION:
JUDGMENT REVERSED.  

COUNSEL:
Winder, for the Appellant; and by

W. Dorsey, for the Appellee.  

OPINION:

 [*558]  THE COURT dissented from the opinion of the County Court, on the ground that a minor could do not act to affect his rights, nor could his guardian for him. That the guardian of a minor importing a slave, did not entitle him to freedom, nor did the assent of the minor, during his minority, give such title.
JUDGMENT REVERSED.  

3 of 38 DOCUMENTS 

KARTHAUS VS. OWINGS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

4 H. & J. 263; 1817 Md. LEXIS 11 

December Term, 1811, Argued 

June, 1817, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court. This was an action of replevin, and at the trial in the county court in April 1809, the plaintiff, (now appellant,) offered in evidence, that one J. M. Minor, residing in the city of Baltimore, and carrying on the business of a merchant, was the owner of the goods and merchandise mentioned in the bill of lading herein after mentioned; and being such owner, on the 9th of January 1807, shipped them at the port of Baltimore, on board the schooner Eagle, commanded by D. Havens. to be transported from that port to Cumana. in the West Indies, for Minor's sole account and risk, and consigned to the defendant, (the appellee,) as his agent and supercargo, for sale, and that Havens, the captain of the schooner, did on the said 9th of January 1807, sign three bills of lading for the said goods. That one of the bills of lading was delivered by Minor, before the sailing of the vessel, to the defendant, one other to Havens, accompanied with an affidavit of Minor made on the 10th of January 1807, with the knowledge of the defendant, that he was the owner of the goods mentioned in the bills of lading, and the other of the bills of lading was retained by Minor.  [**2]  That the schooner cleared out at the custom house in the port of Baltimore on the 10th of January 1807, for Cumana, and sailed on the 13th of January, 1807, and that the defendant went in her as supercargo. That Minor on the 2d of March 1807 applied to the plaintiff for the loan of his promissory notes for his, Minor's accommodation, and produced to the plaintiff the said bill of lading, and an invoice and policy of insurance, both of which were for the property mentioned in the bill of lading, as evidences of his property in the said goods, and an assignment of them was offered by him to the plaintiff to guarantee and secure him against all loss from so loaning him his promissory notes, and that thereupon the plaintiff did loan to him his promissory notes to the amount of $ 4,500, and Minor did then assign and transfer, by endorsing his name in blank on the said bill of lading, invoice and policy of insurance, for the said goods, to the plaintiff, as an indemnification and security for so loaning him his promissory notes. That after the said endorsements the schooner Eagle, with the said goods and the defendant on board, arrived at Cumana, where the defendant sold and disposed of [**3]  the outward cargo, and then with the schooner proceeded to Laguira, where he invested the proceeds of the outward cargo in a return cargo, consisting of the goods, &c. mentioned in the writ and declaration in this cause, which goods were marked with the letters J. M. only, that the return cargo was shipped on board the Eagle at Laguira by the defendant; and Havens, the master of the schooner, under the authority, and with the approbation of the defendant, signed the following bill of lading and manifest, viz. "Shipped in good order and well conditioned by James Owings, in and upon the good schooner called The Eagle, whereof is master for this present voyage D. Havens, and now riding in the port of Laguira, and bound for Baltimore, to say 168 barrels of coffee," &c. "for the joint account and risk of the said Owings and John M. Minor, being marked" &c. "to be delivered," &c. "unto Messrs. John M. Minor and James Owings, or their assigns," &c. Dated the 22d of April 1807. Then follows the manifest, &c. Which bill of lading and manifest, so far as the manifest relates to the goods, &c. in the writ and declaration in this cause, were, as the plaintiff contended, upon the exhibition of [**4]  the bill of lading, and without producing any other proof of the fact, originally made out, consigning the said goods to Minor alone, and that afterwards, and with different ink, the words "and James Owings," were entered in the same, and that in the bill of lading the word "Mr" was altered into "Messrs." and the word "his" into the word "their." That the schooner arrived at Baltimore from Laguira on the 22d of May 1807, with the said goods mentioned in the declaration on board; and that before the arrival of the schooner at Baltimore, the plaintiff had been obliged to pay the promissory notes so loaned to Minor. That the defendant on the 9th of January 1807, and for some years preceding, resided in the city of Baltimore, and that the same was known to the plaintiff at the time he agreed to receive the endorsement and assignment of the bill of lading, invoice and policy of insurance, as herein before stated. That it is the established custom of merchants in Baltimore, when a merchant ships goods to the West Indies, and employs a supercargo, to fill up the bills of lading in the same manner as the bills of lading endorsed to the plaintiff by Minor, and that the shipper is at liberty [**5]  to give instructions to the supercargo, directing the particular manner in which he shall manage the goods so committed to his charge, and that the supercargo so made, is considered only as the agent and attorney of the shipper, acting under his authority, and subject to such instructions as he may from time to time receive from his employer; and that a bill of lading and invoice of the goods, are always retained by the shipper. The plaintiff further gave in evidence, by cross examination of a witness sworn on the part of the defendant, that he was present at the contract between the plaintiff and Minor, relative to the loan of the promissory notes, and saw Minor endorse the bill of lading, invoice and policy of insurance, to the plaintiff; and that neither the witness, nor Minor, as he heard, did at that time, or at any other time, to the knowledge of the witness, inform the plaintiff of the agreement between Minor and the defendant, as hereinafter mentioned, or of any interest which the defendant had in the said goods, other than as mere supercargo. And that the agreement was drawn up in the hand-writing of the witness, and was executed in his presence, and that he was privy to the [**6]  arrangements between Minor and the defendant relative to the said goods, as hereinafter stated. The defendant gave in evidence, by a competent witness, that during the month of January 1807, and for a considerable length of time previous thereto, he acted as clerk to Minor, and that during the beginning of the said month of January, Minor purchased sundry goods and merchandize of divers persons in the city of Baltimore, which on the 8th and 9th of that month he loaded and shipped on board the schooner Eagle, whereof D. Havens was master, which merchandize is more particularly described by the original invoice thereof, and the bill of lading delivered to the defendant by Minor before the sailing of the schooner, and which invoice and bill of lading the defendant read in evidence. The said witness further gave in evidence, that antecedently to the 10th of January 1807, it was agreed upon between Minor and the defendant, that the latter was to sail as the consignee and supercargo of the said merchandize, shipped as aforesaid on board the said schooner. That on the 10th of January aforesaid, it was agreed and concluded on between Minor and the defendant, that the said goods should be considered [**7]  on the joint account of Minor and the defendant, agreeably to the memorandum of agreement then drawn up by the witness, and signed and sealed by Minor and the defendant, and delivered to the defendant by Minor in the presence of the witness, who attested the same. Which said agreement, produced by the defendant, admitted as evidence by the parties, is as follows, viz. "It is the understanding and agreement by and between John M. Minor and James Owings, that the goods shipped by John M. Minor on board the schooner Eagle, Daniel Havens master, for Cumana and a market, are and shall be considered on the joint account of the parties; that is, the two thirds to said Minor, and the other third to the said Owings. And we consider ourselves bound to pay each our proportion for the said goods and insurance when due, as well as necessary charges. The said Owings is to receive a commission on the sales and purchases with the proceeds, the same as from other shippers by the vessel, and the same freight, and payable at the same time as the said Owings has to pay the said Havens, as per charter party." The witness further gave in evidence, that after the execution of the said agreement, and on the [**8]  same day, upon a further consideration between Minor and the defendant, it was agreed between them, that in consideration that the defendant would become the endorsor on sundry promissory notes about to be given by Minor to sundry persons of whom he had purchased a part of the said goods, and on account thereof, the defendant should retain and have a lien upon the whole of the said goods, and the proceeds arising from the sale thereof, to reimburse and indemnify him for all sums of money which he should pay on account of the said endorsements, or which were therefore, or should thereafter, become due and owing from Minor to the defendant. That the defendant, on the faith of such agreement, endorsed the said promissory notes, which were afterwards delivered by Minor to the vendors of the said goods; and which notes, it is admitted by the parties, have been satisfied and paid by the defendant, upon Minor's having become insolvent and failing to do so--which said promissory notes were produced by the defendant, and read as evidence, with the consent of the plaintiff, amounting in all to the sum of $ 4642 41. The defendant further offered evidence, that he entered on board the schooner [**9]  Eagle, and sailed from the port of Baltimore on the 13th of January, 1807, for the port of destination, where she arrived, and at which port Havens, agreeably to his bill of lading, delivered the goods to the defendant, who sold and disposed of the same, and invested the proceeds thereof in a return cargo at the port of Laguira, where the same was shipped by the defendant on board the Eagle, whereof Havens was master, and for which return cargo Havens gave to the defendant the bill of lading now produced by the defendant and read in evidence, and which is herein before mentioned. The defendant further offered evidence, that the Eagle sailed from Laguira with the return cargo, and the defendant on board, and arrived at Baltimore; that upon her arrival Havens returned to the custom house officer of the U. S. at Baltimore, a manifest of the cargo of the Eagle, in due form, which was produced by the plaintiff, and read in evidence, with the consent of the defendant, and is relied on by the defendant, and is as herein before mentioned. The defendant also read in evidence, with the consent of the plaintiff, two bonds each for $ 834 60, given by the defendant, with C. C. E. and S. O. as his [**10]  sureties, to secure to the U. S. the duties on the said return cargo; which said bonds, it is admitted by the parties, have been satisfied and paid by the defendant. He further offered evidence, that after the arrival of the Eagle at Baltimore, the said return cargo, mentioned in the last mentioned bill of lading was, in pursuance thereof, delivered to him the defendant, and was by the plaintiff afterwards replevied, and taken out of the possession of the defendant. That the value of the said return cargo at the port of Baltimore was about $ 10,332. The defendant then moved the court to direct the jury, that the plaintiff was not entitled to recover upon the above statement of facts. Which direction the Court [Nicholson, Ch. J.] gave to the jury. The plaintiff excepted; and the verdict and judgment being against him, he appealed to this court.

JUDGMENT AFFIRMED.

After which Karthaus filed a bill in chancery against Owings, charging him with fraud, &c. And as a foundation for relief he relied upon the facts stated in the bill of exceptions herein before mentioned, and which were proved, &c. But that the fact of the alteration of the bill of lading was not proved at law.  [**11]  The bill prayed for relief, &c. and also for an injunction to stay proceedings on the judgment at law, which was granted. Owings by his answer admitted that the return cargo was shipped in the name of Minor only, and that he interlined his own name in the bills of lading and manifest, after he arrived at the port of Baltimore.

KILTY, Chancellor, (February Term 1816.) I am of opinion, that the complainant had a property in, or a lien on, the goods composing the return cargo consigned to J. M. Minor under the assignment in the bill of lading of the outward cargo, to the extent of his claim intended to be secured thereby; that this property or lien was not affected by the private agreement between Minor and Owings previous to the sailing of the schooner from Baltimore, the said agreement, under the circumstances disclosed, being considered fraudulent; that the alteration of the bill of lading by Owings was a fraud. And that it does not appear from the transcript of the record exhibited, that the whole question as to the fraud was so fully before the court of law, as to preclude this court from considering the case after the verdict, supposing its concurrent jurisdiction not to be [**12]  otherwise sufficient. The shipment from Baltimore was made on the sole account of Minor, and the consignment to Owings as agent and supercargo, gave him no right to the goods on his own account. The bills of lading delivered to Owings and the captain, were accompanied with Minor's affidavit that he was the owner of the goods. The agreement in writing that the goods shipped should be on the joint account of Minor and Owings, was inconsistent with the fact appearing on the bill of lading left with Minor, and no alteration was made in that and the other bills, although the schooner remained in port three days longer. This written agreement was concealed from Karthaus by Minor, and also by Gillet his clerk, and the witness in the suit at law. The verbal agreement proved by him to have been made the same day by which Owings was to have a lien on the goods, was in like manner concealed; and although Owings had a right to take a security on account of his endorsements, it should have been done by direct and open means, without leaving in Minor an apparent right by which third persons might be defrauded and injured. It is admitted by Owings in his answer, that he shipped the return cargo in [**13]  the name of Minor alone, though with the intention of holding the property as part owner; and that he altered the bill of lading after his arrival at the fort near Baltimore, by adding for the joint account and risk of James Owings and John M. Minor. And he states, that it was for the purpose of making an entry at the custom house, and of holding the property under the agreement.

I shall not inquire as to what was necessary to make an entry at the custom house; but as to the other purpose, I consider the act as unauthorized and fraudulent. This fact does not appear from the transcript of the record to have been fully before the court and jury, it being stated in the bill of exceptions that the plaintiff contended that the bill of lading was made out consigning the goods to Minor alone, upon the exhibit of the said bill, without producing any other proof of the fact. The probability of the present complainant having had it in his power to produce further testimony as to this fact, is not considered sufficient to prevent the interference of this court. As to its general power in such cases, the opinion of the court of appeals, in their affirmance of the decree, in the case of Singery [**14]  vs. The Attorney General, 2 Harr. & Johns. 487, had some bearing on the question. The nature of the decree to be made is next to be considered. The complainant in his bill states, that 168 barrels of coffee, and 6 seroons of indigo, were delivered to him on the writ of replevin; that he caused a part to be sold, which produced the nett sum of $ 4,061 23 to him, and that he gave the defendant liberty to sell the remainder, which he did, the nett proceeds amounting to $ 5,207 78, being retained in his hands. A decree to account, which is stated to be one of the objects of the bill, will not be made; but adverting to the proceedings, and the order of injunction, such decree will be passed as will leave the complainant the benefit of what he kept in his hands. Decreed, that the injunction be perpetual, &c. From which decree the defendant, (Owings,) appealed to this court.  

DISPOSITION:
DECREE REVERSED.  

HEADNOTES:

J M, being the owner of certain goods, &c. on the 9th of January 1807, shipped them at B, to be carried to C, for his sole account and risk, and consigned to J O as his agent and supercargo, for sale The captain of the vessel on the same day signed three bills of lading, one retained by J M, one delivered by him to J O, one to the captain, with an affidavit of J M, made on the next day, with the knowledge of J O, that he was the owner of the goods. Before the 10th of January 1807, it was agreed upon between J M and J O, that the latter was to sail as the consignee and supercargo of the goods; and it was agreed in writing, that the goods should be considered on their joint account, that is, two third to J M, and the other third to J O. After the execution of the agreement, and on the same day it was agreed between J M and J O, that in consideration that J O would become an endorser on sundry promissory notes about to be given by J M to the persons of whom he had purchased a part of the goods; J O should retain and have a lien on the whole of the goods, and the proceeds arising from the sale thereof, to reimburse and indemnify him. J O did endorse such notes, and had paid them, J M becoming insolvent and failing to do so. The vessel sailed on the 13th of January 1807, and arrived at C, and the goods were delivered to J O, who sold them, and invested the proceeds in a return cargo, which he shipped on board the same vessel for B. the captain giving to J O a bill of lading and manifest, stating that the goods had been shipped for the joint account and risk of J M and J O, and to be delivered unto J M and J O, or their assigns It was alleged that the bill of lading was originally made out, consigning the goods to J M alone, and afterwards, and with different ink, the words "and J O" were interlined, and the word "his" altered into the word "their." On the 2d of March 1807. J M applied to P K for the loan of his promissory notes, and P K did loan to him his promissory notes, and to guarantee P K against any loss, J M assigned to P K the bill of lading first herein mentioned, invoice and policy of insurance for the goods. Before the return of the vessel to B, P K had been obliged to pay the notes he had loaned to J M, P K had no knowledge of the agreement between J M and J O at the time of the assignment of the bill of lading, &c. On the arrival of the vessel at B, with the return cargo on board, on the 22d of May 1807, the cargo was delivered to J O, who bonded for and paid the duties thereon to the U. S. P K afterwards replevied the goods out of the possession of J C--Held, that P K was not entitled to recover.

On a bill filed in chancery, it was decreed, on the above facts, that J O, a supercargo and consignee of the outward cargo, and in virtue of the verbal and written agreement, had a right to retain the inward cargo, and had a lien thereon to reimburse himself for all advances made by him, and to satisfy any balance which might be due to him on a final adjustment of the transactions in trade between him and J M. That J O, in making the alteration in the bill of lading did not act fraudulently, nor did he acquire any new rights thereby. He had a right to stop the goods in transitu.

Quere. What would have been the situation of the parties if there had been no agreement? 

COUNSEL:
Winder, for the Appellant, cited Coxe vs. Harden, 4 East, 211.

T. B. Dorsey, for the Appellee, cited Wright vs. Campbell, 4 Burr. 2046. Hibbert vs. Cartex. 1 T. R. 745. Evans vs. Marlett, 1 Ld. Raym. 271. Coxe vs. Harden, 4 East, 211, per Lord Ellenborough.

Martin and Moale, for Owings,  [**15]  the Appellant, contended--1. That the appellee was precluded from any relief in equity by the trial at law. 2. That on the merits the equity was with the appellant. They referred to Caldwell vs. Ball. 1 T. R. 205. Newson vs. Thornton, 6 East, 21, (note) per Buller, J.

Winder and Winchester, for the Appellee, contended, that independent of the question of fraud and collusion between Owings and Minor, and admitting that Owings really and bona fide became the partner of Minor as alleged. yet his voluntarily allowing Minor to retain in his hands the ordinary and regular documents by which he could represent the property to third persons to be his own, and by this means having induced the appellee to become answerable for him, gave to the appellee such an equitable lien as a court of chancery will enforce in preference to the right of Owings.  

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

OPINIONBY:
CHASE 

OPINION:

 [*269]  CHASE, Ch. J. delivered the opinion of the Court. The court are of opinion, that Owings, the appellant, as supercargo and consignee of the outward cargo, and in virtue of the verbal agreement proved, and the [**16]  written agreement by which he became interested in one third of the cargo, had a right to retain the inward cargo, and had a lien thereon to reimburse himself for all advances made by him, and to satisfy any balance which might be due to him on a final adjustment of the transactions in trade between himself and Minor. The alteration made in the bill of lading by Owings was made for the purpose of enabling him to enter the inward cargo, Minor having become insolvent and absconded. Owings, in making the alteration, did not act fraudulently, nor did he acquire any new rights thereby; he was the shipper of the goods, and the bill of lading was in his possession, and under his control, and he had a right to stop the goods in transitu. So long as Owings retained the possession of the goods, he had a lien on them to satisfy all legal demands, and he could not be divested of his possession by Minor, or any person claiming under him, until they were satisfied. Karthaus, the appellee in virtue of the assignment to him from Minor, stood in his place, and did not thereby acquire an interest in the outward cargo superior to that which vested in Minor previous [**17]  to his making the assignment.
The court are of opinion that the transaction on the part of Owings is not tinctured with fraud, and that the decree of the court of chancery be reversed with costs.
It appears to the court that it is not necessary to determine what would have been the situation of the parties if the agreement before mentioned had not existed.
DECREE REVERSED.  

4 of 38 DOCUMENTS 

THE BALTIMORE INSURANCE COMPANY VS. M'FADON.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

4 H. & J. 31; 1815 Md. LEXIS 10 

December, 1815, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court. This was an action of covenant on a policy of insurance dated the 11th of March 1799, brought in the name of John M'Fadon, as surviving partner of R. Lawson, for the use of Dorsey and Holtins. The defendants, (now appellants,) pleaded non infregit conventionem, and bankruptcy of the plaintiff. Issue was joined to the first plea, and a replication to the second plea, that the policy was assigned, &c. Rejoinder, that there was no assignment. There was an agreement that all errors in the pleadings should be released.

1. The plaintiff, (now appellee,) at the trial, read in evidence the policy of insurance in the declaration mentioned, under the common seal of the defendants; and also gave in evidence, that on or about the 1st of March 1799, the brig Betsey, in the policy mentioned, sailed from Baltimore to Barracoa, in the Island of Cuba, on the voyage insured in and by the policy, having on board a cargo of lawful goods to the value of $ 30,000, and upwards, the property of the plaintiff and R. Lawson, and R. Caton and J. F. Kennedy, all then citizens of the United States; that the said brig, with said goods on board, then proceeded on the said [**2]  voyage, and while in the regular prosecution thereof, on the high seas, afterwards, to wit, on or about the 20th of March aforesaid, was captured and taken, together with the said goods, by a British ship of war, whereby the said goods were totally lost to the plaintiff, and R. Lawson, J. F. Kennedy and R. Caton. The defendants then gave in evidence, that the brig Betsey, on the said 1st of March aforesaid, cleared out from the port of Baltimore for Carthagena, on the continent of South America, and actually proceeded, on or about that day, on a voyage to Carthagena, and not to any port in the Island of Cuba; and that the said brig then and there took on board, and at the time of the capture had on board, a regular clearance for Carthagena, together with a bill of lading, invoice and manifest, of the said cargo, and affidavit to prove the property thereof annexed to the said invoice, a letter of instruction from the plaintiff to the captain of the said brig relative to the said manifest of the cargo, passport voyage, and a sea letter therefor; in all of which several papers and documents the voyage is described as and declared to be a voyage from Baltimore to Carthagena. And the defendants [**3]  read in evidence the said clearance, bill of lading, invoice, affidavit, letter of instructions, passport and sea letter. The defendants further gave in evidence, that at the time of making the said policy, it was, and ever since hath been, the usual and constant practice of the defendants, and of some other insurance companies in the city of Baltimore, when applied to for insurance on vessels cleared out for one port, but actually bound to another, to require from the applicants a written communication of the fact of the clearance or ostensible voyage in the order of insurance, or otherwise; and Alexander M'Kim, the former president of the Baltimore Insurance Company, who among others proved the above usage, being asked by the plaintiff's counsel whether the Baltimore Insurance Company would have dispensed with the information being in writing if they had been pressed so to do by the person proposed to be insured, replied, that no case had occurred to his knowledge, but if such application had been made, strong reasons must have been assigned to have induced the Baltimore Insurance Company to acquiesce in the request; all of which is mere matter of opinion on the part of the witness [**4]  as to what might have been done by the directions of the Baltimore Insurance Company upon such application. The plaintiff then read in evidence, by consent, among other evidence of that fact, the following deposition of William Furlong, master of the brig Betsey, with a paper thereto annexed, and therein referred to, purporting and admitted to be the rough minutes or draft of a letter of instructions from the plaintiff to Furlong, of and concerning the said voyage. The deposition of Captain William Furlong, taken the 4th of October 1811, stated--"That he sailed out of the port of Baltimore some time in March 1799, on board of the brig Betsey, as master thereof, bound to Barracoa, within two leagues of which he was captured by a French privateer, and carried into a port two leagues to the windward of Barracoa; was there cut out by a British frigate, and carried to Jamaica. That he sailed with positive instructions from his owners to proceed to Barracoa, and that he was going direct thereto, without any deviation, when he was captured. That he left his letter of instructions, with other papers, in Jamaica, and that the paper hereto annexed, marked A, contains the substance of that letter.  [**5]  That his letter of instructions from his owners only spoke of Barracoa as his port of destination. He does not recollect whether he had two letters of instructions or not. That his instructions to proceed to Barracoa were in writing. That he delivered up to the commander of the British frigate the whole of his papers, and that no papers were concealed. That if he had been bound to Carthagena he would have been out of the course of his voyage when he was captured by the French privateer." Exhibit A. "Herewith you," &c. &c. "Should Mr. Kennedy not be at B. you will call on Mr. John Richeau, and in his absence on P. Casamajor, and in his absence to Mr. Boreau. You will let the brig remain there; get over to Jeremie, explain the business of your voyage to John Ducarneau, who will suggest the wisest plan for you to move in. Mr. Casamajor is our friend, and an upright, intelligent man; he is the second person you will depend on, and can be of more use to you than any other in the island. The business of the small vessels are only known to Mr. Ducarneau and Mr. Kennedy, you will of course let them be disposed of as Ducarneau directs. Dispatch is every thing. Herewith you have a letter to [**6]  Mr. Kennedy. You will open and read it, and you will govern yourself, in case of his absence, by our directions to him. Should the intercourse be opened you shall receive the earliest information." The plaintiff also read in evidence the following letter from Alexander M'Kim to the plaintiff, dated the 18th of January 1813, M'Kim being at that time the president of the Baltimore Insurance Company, to wit: "The abandonment of the cargo of the brig Betsey, Capt. Furlong, offered on the 11th inst. to the Baltimore Insurance Company, is rejected. The company are bound by their policy for their proportion of all expenses incurred or to be incurred in the defence of the property, which proportion of expenses they will always be ready to pay on the production of proper vouchers thereof, and any other loss or injury arising under the policy, as soon as the same can be adjusted." The plaintiff also gave in evidence, that at the time of making the said policy, the fact that the brig had cleared out for Carthagena, and had on board the documents describing her voyage as a voyage from Baltimore to Carthagena, was known to the defendants. The plaintiff then prayed the opinion of the court, and [**7]  its direction to the jury, that if they believed the said vessel did in fact proceed on a voyage from Baltimore to Barracoa at the time mentioned, and if the fact that she had cleared out for Carthagena, and had on board the said documents describing her voyage as a voyage to Carthagena, was known to the defendants at the time of making the said policy, then the said clearance, and the documents last aforesaid, cannot in law affect the plaintiff's right to recover. Which opinion and direction the Court [Nicholson, Ch. J.] accordingly gave. The defendants excepted.

2 The plaintiff having read in evidence the aforesaid deposition of William Furlong, with the paper thereto annexed, and having so read the same to prove that the real voyage of the brig Betsey was to Barracoa, in the Island of Cuba, the defendants read and relied on the said letter and paper to prove, that the master of the brig Betsey was instructed by the owners of the vessel and cargo, to proceed with the said cargo to Barracoa, in the Island of Cuba, and there to leave the vessel to go to the port of Jeremie, admitted to be a port or place in the Island of St. Domingo, in the West Indies, near to the port of Barracoa,  [**8]  and admitted to have been then, and long before and after, a port or place within the territory of the French Republic, and under the known and acknowledged authority of France; and at the port of Jeremie to sell, barter or exchange, or otherwise dispose of in the way of commerce and traffic, the whole or some part of the said cargo, to or with some person or persons resident at the port of Jeremie, or resident at some other port or place within the jurisdiction or under the authority of the French Republic; or with the proceeds of the said cargo, or by other means, to purchase from such person or persons, so resident, the whole or some part of a return cargo for the said owners, with intent to convey and ship the same on board of the said brig as a return cargo, or part of a return cargo. And thereupon prayed the opinion of the court, and their direction to the jury, that if the jury should believe the said facts from the said evidence, then the policy of insurance was void. But the plaintiff objected to the said direction, and to the competency of the said evidence for the purpose aforesaid. And the court were of opinion, and so directed the jury, that if they believed the intent [**9]  and object of the voyage, and the instructions to the master, to be as above stated, that then the plaintiff cannot recover in this action; for he cannot call upon a court of this country to aid him in recovering a compensation for not having succeeded in an attempt to violate the laws of the country. And the court were further of opinion, that competent and sufficient matter had been disclosed by this letter, when connected with the other evidence in the case, to leave this question to the decision of the jury. The plaintiff excepted.

3. The defendants then offered in evidence the following promissory notes given by John M'Fadon, & Co. and by Richard Caton and John M'Fadon, & Co. to the defendants, in discount or bar of the plaintiff's claim, to wit: One note dated the 11th March 1799, drawn by John M'Fadon, & Co. and Richard Caton, for $ 3402 75, payable to the defendants, or order, six months after date. Another dated 22d August 1801, drawn by John M'Fadon, & Co. for $ 3833 34, and payable as aforesaid nine months after date. Another dated 14th January 1802, for $ 544 30, drawn by Richard Gaton and John M'Fadon, & Co. and payable as aforesaid three months after date. Another [**10]  dated 19th January 1802, drawn by the last mentioned persons, for $ 602 50, and payable as aforesaid 15 months after date. Another dated 23d September 1801, drawn as aforesaid, for $ 1752 75, and payable as aforesaid, fifteen months after date; and another dated July 8, 1799, for $ 3882 82, and drawn and payable as aforesaid, three months after date. The defendants then proved that the said notes were respectively signed by John M'Fadon, & Co. and Richard Caton; and that Richard Lawson, who was the partner of John M'Fadon, trading under the firm of John M'Fadon, & Co. died on the 1st of November 1803; and that John M'Fadon, mentioned in the said notes, and the plaintiff, are one and the same person; and that the plaintiff on the 1st of December 1803, having previously committed an act of bankruptcy on the 29th of November 1803, and being then and there a person residing in Baltimore, and using the trade of merchandize, by buying and selling in gross, was duly declared a bankrupt within the true intent and meaning of the act of Congress of the United States, entitled "An act to establish an uniform system of bankruptcy throughout the United States;" and that Thomas Caldwell and August [**11]  A. Swartze, were duly appointed assignees of the estate and effects of the said bankrupt, and that the estate and effects of the said bankrupt were and became duly and according to law vested in the said assignees; and that the plaintiff, having regularly complied with the provisions of the said act of congress, obtained his certificate of discharge in pursuance of said act. The plaintiff then gave in evidence, that on the 24th of October 1803, he, the plaintiff, and Richard Lawson, by the name of John M'Fadon, & Co. at Baltimore, did assign, transfer and deliver, the policy aforesaid, to a certain Robert Oliver, for a valuable consideration; and that on the same day and year the said Robert Oliver, for a valuable consideration, did assign, transfer and deliver, the said policy, to a certain John F. Kennedy; and that afterwards, on the 25th of October aforesaid, the said John F. Kennedy, at Baltimore, did assign, transfer and deliver, the said policy, for a valuable consideration, to a certain Joshua Dorsey and John Hollins, who now hold the same, and for whose use this action is brought. The plaintiff then objected to the said notes being admitted in discount and bar as offered by [**12]  the defendants. And the court was of opinion, that in as much as this was an open policy, and the claim of the plaintiff was for general, uncertain, and unliquidated damages, that the said promissory notes could not be admitted in bar or discount of the plaintiff's action, and therefore rejected them. The defendants excepted.

4. The plaintiff then gave in evidence, that the brig Betsey and cargo, after being captured as aforesaid, was carried by the captors into the Island of Jamaica, and were there by them libelled as prize, and for salvage, in the vice admiralty court of the said island, and duly claimed on the part of the owners; that a part of the cargo, consisting of flour in barrels, fish in casks and boxes, oil in flasks, and wine in bottles, and of the value, according to the invoice and actual price, of $ 5000, were sold in the Island of Jamaica, and produced the sum of $ 4000, which sum the plaintiff received; that the said sale took place under and by virtue of an interlocutory decree of the said court of vice admiralty, which decree is contained in the record of the proceedings of the vice admiralty court of Jamaica, which he produced in evidence. That after the said [**13]  interlocutory decree, the said vice admiralty court acquitted the said vessel and cargo, and ordered the same to be restored by a final decree, which said final decree was also offered in evidence. He further proved by the record of said proceedings, that an appeal was duly interposed from the said decree by the libellants, upon which the said vessel and cargo were ordered to be given up to the plaintiff, on his entering into a stipulation to fulfil the final decree on the appeal, which he accordingly did; and thereupon the vessel, and the residue of the cargo, were, pursuant to the last mentioned decree of the vice admiralty court, delivered up to the plaintiff, who thereupon and of his own accord sold a further part of the cargo, consisting of flour in barrels, fish in casks and boxes, and wine in bottles, to the value of $ 10,000, according to the original invoice; which said last mentioned part of the cargo produced at the said sales the sum of $ 8000. That the said two sums of $ 8000 and $ 4000, were then and there received by the plaintiff, and applied to his own use. The plaintiff then prayed the court to direct the jury, that if they believed the said facts, and if the plaintiff,  [**14]  under the sundry opinions of the court, is entitled in their opinion to recover, then he is entitled to recover as for a partial loss on and for the said two parts of the cargo sold as aforesaid, and each of them, by reason and on account of the said deficiency in the sums produced by the sales respectively. And the court directed the jury, that the plaintiff was entitled to recover as for a partial loss for the difference between the sum produced by the sale of that part of the cargo which was sold by the order of the court of vice admiralty, and the actual value thereof at the port of Baltimore; but that the plaintiff was not entitled to recover for the difference between the sum produced by the sale of that part of the cargo which was sold by the plaintiff himself, or by his agents, and the actual value thereof at the port of Baltimore. The defendants excepted to the first direction of the court, and the plaintiff to the second. The verdict and judgment being for the plaintiff, the defendants appealed to this court.  

DISPOSITION:
JUDGMENT REVERSED, AND PROCEDENDO AWARDED.  

HEADNOTES:

A policy of insurance dated in 1799, was effected on the cargo of a vessel bound from B, in the U S. to A, in the Island of Cuba, which vessed was captured, and the cargo lost in the insured. It was proved that the vessel cleared out from B to C, on the continent of South America, and proceeded on her voyage to C and not to A, and when captured had a regular clearance for C, together with a bill of lading, invoice and manifest of the cargo, and affidavit to prove the property thereof annexed to the invoice, with a letter of instruction from the insured to the captain of the vessel, relative to the manifest of the cargo, passport, voyage and sea letters in all of which the voyage was described as a voyage from B to C. The evidence of the captain was, that he sailed from B to A, and with positive instructions from his owners to proceed to A, and he was going direct thereto when he was captured. Evidence was also offered by the assured, that at the time of making the policy, the fact that the vessel had cleared out for C, and had on board the said documents, was known to the assurers--Held, that if the vessel did in fact proceed on a voyage from B to A, at the time mentioned, and if the fact, that she had cleared out for C, and had on board the said documents, describing her voyage as a voyage to C, was known to the assurers at the time of making the policy, then the clearance, and the documents, could not in law affect the assured's right to recover

If the intent and object of the voyage, and the instructions to the master of the vessel, were to proceed with the cargo to A, and there leave the vessel to go to J, a port within the territory of the French republic, and under the known and acknowledged authority of France, and at J to sell, barter or exchange, or otherwise dispose of, the cargo, or a part thereof, to or with some person at J, or with the proceeds of the cargo to purchase there the whole or a part of a return cargo for the owners, with intent to convey and ship the same on board the said vessel as a return cargo, or part of a return cargo, that then the assured cannot recover Per Nicholson, Ch. J. in the county court

A promissory note drawn by P, in favour of D, may be set off in an action on an open policy of insurance brought by P against D

Where a vessel and cargo, after being captured, were libelled as prize and for salvage in the court of vice admiralty, and part of the cargo was sold by virtue of an interlocutory decree of that court for less than the value, according to the invoice and actual price, and the proceeds of sale paid to the assured; and the vessel and cargo were acquitted and ordered to be restored by a final decree, and the vessel and residue of the cargo given up to the assured, who sold the residue of the cargo for less than the value, according to the invoice, and received the same--Held, that the assured was entitled to recover, as for a partial loss, for the difference between the sum produced by the sale of that part of the cargo which was sold by the order of the court of vice admiralty, and the actual value thereof at the port of B, where the insurance was effected, but that the assured was not entitled to recover for the difference between the sum produced by the sale of that part of the cargo which was sold by the assured himself, and the actual value thereof at the port of B 

COUNSEL:
Pinkney, for the Appellants, contended--1. That the action was not properly brought; that it should have been in the [**15]  names of the persons interested; and that the release of errors in the pleadings, agreed to by the counsel in the cause, did not operate to cure the error. He insisted that this agreement did not apply to the writ. That in the construction of instruments, where technical terms are used, the law gives the meaning.

2. That the plaintiff, being a bankrupt, the action could not be sustained in his name. The assignment of the policy was merely by indorsation; and it is questionable whether a policy of assurance is that kind of instrument, being under seal, which can be transferred by indorsation. In Pennsylvania, it has been decided that it cannot; though in England the doctrine is otherwise. The assignment should have equal solemnity as the original instrument. If the transfer is not legal, then the interest under the policy is in the assignees, under the act of bankruptcy, and the action is brought wrong; and if it is legal, and the policy was transferred by simple endorsement, then the suit should have been brought in the names of the assignees under the transfer.

3. That a liquidated claim due from the plaintiff to the defendants, may be set off against an unliquidated demand [**16]  of the plaintiff against the defendants. He referred to the act of 1785, ch. 45, s. 7. Roussel vs. The Insurance Company of North America, 1 Binny's Rep. 429, (and note.)

Harper and Winder, for the Appellee, contended--1. That there was no defect in the writ, the policy being in the names of John M'Fadon, & Co. and all and every other person, &c. so that any person interested therein may bring a suit on it. 2 Marsh. 683. The pleadings do not show that any persons but John M'Fadon, & Co. were interested. But if there is error in the writ, the release of errors in the pleadings, by a liberal construction of the agreement, will remedy it; and if the declaration states that others were interested, this is expressly released by the agreement--the declaration being part of the pleadings.

2. The question with respect to the assignment of the policy is not open. The plaintiff was merely a trustee, after he had assigned his interest, for the benefit of the persons to whom he had made the equitable assignment, which was not affected by his bankruptcy; and the assignees under the bankruptcy had nothing to do with the trusts of the bankrupt. Whether or not the assignment was made before [**17]  the bankruptcy, was an issue which the jury found in favour of the assignment. The universal practice is to assign a policy of insurance by simple endorsement, and therefore no particular form is necessary.

3. The set-off may be resisted on three grounds--1st. The act of 1785 does not permit a defendant to offer a set-off in an action for an unliquidated claim. No action is susceptible of a set-off unless where the demand is for a certain sum. 2d. The notes offered to be set off were rejected generally, and if there was any good reason for rejecting them, the judgment of the court below was right, although the reasons for their judgment may not be so The notes offered as a set-off were offered ore tenus, the plaintiff therefore could not plead the act of limitations to the notes, but must set it up ore tenus. The objection against the set-off was general, and one may be now urged which had not been in the court below. 3d. The equitable assignees were not liable to any claim against the assignor without notice, and there was no proof of notice. Upon either of these grounds the judgment of the court below is correct.

Pinkney, in reply. It would not be proper to set off an unliquidated [**18]  demand, because there would be two distinct issues to try. The defendant's demand must be liquidated, but the plaintiff's need not. The notice of the assignment of the policy should be given by the assignees to the insurers, and not having done so, if the assignment was legal, there is nothing to prevent the set-off for antecedent claims against the assignor. If it were otherwise, great injustice would be done. It is admitted that limitations might have been set up at the trial in bar of the notes, if standing more than three years; but it must be pleaded, or it must appear in the bill of exceptions, that the notes were rejected on that ground; and it not appearing that the rejection of the set-off was because they were barred by limitations, this court cannot notice that the rejection was on any such ground. It has ever been holden that, the statute of limitations cannot be relied on, unless it is expressly shown that it is relied on. He cited Stoddert v Dunlop, 2 Harr. Ent. 490 Stone v Rafter, 1 Harr. & Johns. 364; and Clarke v Magruder, 2 Harr. & Johns. 77.  

JUDGES:
The cause was argued before CHASE, Ch. J. and BUCHANAN, EARLE, JOHNSON, and MARTIN, J. BUCHANAN, J., dissenting.  

OPINIONBY:
JOHNSON 

OPINION:

 [**19]  
 [*40]  JOHNSON, J. This is an action brought on an open policy of insurance, in which the plaintiff must not only show that the event insured against has taken place, but also establish the value of the goods insured. Had the suit been on a valued policy, proof to the first point would only have been necessary--the parties themselves having agreed on the amount to be recovered, in the event of a recovery, when the policy was entered into.
To free themselves from the plaintiff's claim, the underwriters produced, by way of discount or set-off, several notes, joint and several, executed by the insured to them. These notes were, by the decision of the court below, rejected, because the policy being open, the extent of the plaintiff's claim was uncertain--dependant on the real value of the goods insured.

 [*41]  In all instances of controverted claims on policies of insurance, the demand in one sense, must be uncertain; for it being a question whether the underwriters are responsible, a decision on that subject must be first obtained, before the extent of the claim presents itself--in the valued policy, that has been agreed on--in the open policy it must be established [**20]  by proof. It is then on account of the uncertainty as to the extent of the claim, and not the uncertainty of the claim itself, that the notes were rejected; for as the decision appears to be founded on the policy being open, had it been valued, a contrary decision would have been pronounced.
This is the first time, within my recollection, where this question has presented itself for the decision of this court, and it must depend on the true construction of the act of 1785, ch. 46, in virtue of which the discounts were attempted to be made.
It would seem but just that mutual claims should be set off, one against the other; that neither should be compelled to pay, when the sum so paid must be refunded on a judgment rendered on the adverse claim. Reasonable as this is, the common law, (if I may so term it,) excluded all such payments, and the parties were left to their mutual remedies at law by distinct suits, or one of them must resort to a court of equity to have his claim set off or discounted from his adversary's judgment.
In this situation were claims of this description left until the time of Geo. II, in the second year of whose reign a law passed permitting "mutual debts [**21]  between the plaintiff and defendant" to be set off, one against the other. This statute contains no other description as to the nature of the debts, except that they are "mutual"--whether of equal or superior nature as to their origin--whether the one was on a specially, and the other on a simple contract, made no difference, except the word "mutual" must restrain them to debts of the same nature. The courts having so long rejected defences of this description, after the passage of this remedial statute, they restrained its operation as far as practicable, and would permit no debts to be discounted, except of the same grade. The legislature of Great Britain again interposed, and in 8 Geo. H, passed another statute permitting discounts, "notwithstanding they were of different natures."

 [*42]  These two statutes having passed before the separation of this country from Great Britain, did or did not form a part of the law of Maryland at the time of the revolution; if they did, who can believe the legislature of this state, in the year 1785, would solemnly have passed an act, which was to have no effect? If they did not, as the construction on those statutes was well [**22]  known, if no more was intended than was embraced by them, can it be conceived that an intelligent legislature would not have adopted the language of those statutes which were known fully to comprehend those objects? But the act of 1785 varies materially from those statutes, and therefore the decision on them, by any rational rule of construction, cannot be solely applied to it.
It has been remarked, that claims, under policies of insurance, as well as claims of every other description, must be uncertain in one sense; that is, whether any claim to any amount exists; if it doth exist, then, and not before, the extent of the claim presents itself. Debts of every description, whether they arise on specialties or simple contracts, are in the same predicament--the instrument must first be proved, or the contract must be proved, before you can examine into the amount of the claim. Nor does it necessarily follow that the instrument, under which the claim is founded, when proved, must disclose on its face the extent of the claim, or that, when resting on simple contract, the contract, when proved, must produce the same result.
Even under the English statutes the contract proved is only [**23]  introductory to the extent of the demand which may be ascertained by evidence not appearing in the contract, and when ascertained, either by confession, or on demurrer to a plea, setting forth such a claim, or by proof, if contested, and in either case is a claim sufficiently certain and ascertained to be deducted from the plaintiff's demand.
In Fletcher vs. Dycke, 2 Term. R. 32, the claim arose from not having done certain work within a certain given time, under a contract, stipulating that for each week after the expiration of the stipulated time, a specific sum was to be paid; the time that had expired was necessary to be averred, and if not admitted, must of course have been proved.
In the case of a simple contract, whether for work and labour done, on a quantum meruit, or goods sold on a quantum 

 [*43]  valebant, the contracts under which the work was done, or the goods sold, must be proved or inferred, and when proved or inferred, yet the extent of the claim rests on other evidence--the value of the work, or the worth of the goods. In the case of an open policy, that being proved, the loss warranted against being ascertained, what remains more to [**24]  be done than on the quantum valebant, that is, to ascertain the value of the goods--in the one instance sold--in the other insured; and, so far as that ascertainment, surely in the one instance, as well as in the other, the extent of the claim is unliquidated. And yet who can doubt but that a set off on the quantum meruit or valebant, would be allowed.
No reason can be urged why a person who has an uncertain claim should be permitted to recover from him who had a certain demand. If any difference ought to be made it should be in favour of that which is certain; for a great length of time might be necessary to ascertain the one, and perhaps it might totally fail for the want of proof, and therefore it might be unreasonable to compel the certain creditor to await the termination of the uncertain demand on him. But if he thinks proper to retain his certain demand to meet that which is uncertain, why should he be prevented? He ought not to be prevented, unless the act positively directs it. Recur to that act, and not a word is to be found on the subject of liquidated or unliquidated claims, or debts of any description; its language is general, "that in case any suit shall [**25]  be brought on any judgment, or on any bond, or other writing sealed by the party, and the defendant shall have any demand or claim against the plaintiff, upon judgment, bond, or other instrument under seal, or upon note, agreement, assumpsit, or account proved, as by this act is allowed the defendant, or otherwise according to law, shall be at liberty to file his account in bar, or plead discount to the plaintiff's claim, and judgment shall be given for the plaintiff for the sum only which remains due after just discount made; provided the sum which shall remain due, after such discount, be sufficient to support a judgment in the court where the cause may be tried, according to its established jurisdiction; and in all cases of suits upon simple contracts, the defendant may file an account in bar, or plead discount of any claim he may have against the plaintiff, proved as aforesaid, or otherwise 

 [*44]  proved according to law, which may be of an equal or superior nature to the plaintiff's claim, and judgment shall be given as aforesaid."
As the courts have adjudged that their jurisdiction remained, without regard to the sum found due, on all contracts not expressly found [**26]  to be within the act limiting the jurisdiction, the proviso in the act of 1785, ch. 46, s. 7, it is said, must restrain the general expression in the enacting part of that act, and confine it to such contracts, the jurisdiction over which depended on the amount of the claim. In construing every instrument of writing the whole must be taken together, and no interpretation, if possible to be avoided, should be given, that tends to render any of the provisions nugatory, much less the whole of them; and we have seen, that restraining the words of the act of 1785, so as to exclude the discounts in question, would make the general and comprehensive expression of that act useless, by limiting the right to discount to those cases that had been provided for by the statutes of George, or by the act of this state passed in 1729, ch. 20, s. 5. If, therefore, we were driven to the necessity of excluding all effect to any part of the act of 1785, the proviso must yield to the enacting part, and not it to the proviso. But in giving the opinion which has been pronounced, no such dilemma presents itself. For if the jurisdiction of the court on some contracts depends on the sum found [**27]  due, and on others the authority remains to adjudicate without regard to the sum, then it follows, that on all such contracts, where the jurisdiction rested on the sum due after the discounts made, if those discounts reduced the claim below the jurisdiction, the judgment must be for the defendant; but where the contract, on which the suit was brought, was of a different description, there the plaintiff must have judgment for the sum due, without regard to the amount. And whether the contract sued on was of the one description or the other, must be determined by the court, as it has to do in all cases where the sum found due by a jury, or otherwise, is under the ordinary limits.
By a liberal and extensive construction of the act, the object and policy of the law is advanced by enlarging the description of those claims against which discounts were to be admissible; and if it is not just to permit one man to recover a sum of money from another, to whom he is 

 [*45]  liable for a like sum, so is justice promoted by extending the power of discount. For if the right to discount does not exist, then it is in the power of a person who has a claim, to transfer that claim; and enable the [**28]  transferree to recover the sum due, notwithstanding he, from whom the claim was obtained, never could have forced a payment of the money; for in his hands, either at law or in equity, it must have been subject to all demands on contract against him, whether those demands arose on contracts even between the same, or other persons. But if the defendant is not permitted at law to discount, neither could he, it is apprehended, have redress in equity, where the claim had been transferred to a third person, who had no notice at the time he received the assignment. A more striking instance of the injustice of restraining discounts cannot be conceived, than the case now before the court presents. The underwriters having fixed, ascertained, and just claims on the assured, must notwithstanding be compelled to pay the money to his assignees, when the assignor himself could never have coerced the payment; for against him, most assuredly, at equity, relief might have been obtained, and the one demand set off against the other. By permitting the discounts at law his assignees will, as they ought, stand in his place, and be liable to the same objections against the payment of the money that might [**29]  have been made against their assignor.
THE COURT concurred in the opinions of the County Court in the first and fourth bills of exceptions, and dissented from that in the third bill of exceptions. The second bill of exceptions having been taken by the plaintiff below, did not come under the consideration of the court.
BUCHANAN, J. dissented from the opinion given by this court on the third bill of exceptions.
JUDGMENT REVERSED, AND PROCEDENDO AWARDED.  

5 of 38 DOCUMENTS 

KERR, et al. vs. THE STATE, use of THE LEVY COURT, &c.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

3 H. & J. 560; 1815 Md. LEXIS 29 

May, 1815, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court. Debt on the following bond: "Know all men by these presents, that we, William Kerr, William Jones, Charles Griffin, Richard Ridgely. Esquire, and William Booth, all of Baltimore county, in the state of Maryland, are held and firmly bound unto the state of Maryland, in the sum of five thousand dollars current money of the United States, to be paid to the said state; to the which payment, well and truly to be made and done, we bind ourselves, our and every of our heirs, executors and administrators, in the whole and for the whole, jointly and severally, firmly by these presents. Sealed with our seals, and dated this third day of October one thousand eight hundred and four. Now the condition of the above obligation is such, that if the above bound William Kerr shall perform all the duties required of him as supervisor of the turnpike roads in Baltimore county agreeably to the directions of an act of assembly, entitled, "An act to repeal an act, entitled, An act to lay out several turnpike roads in Baltimore county, and the several supplements thereto, and for other purposes," then the above obligation to be void, else to be and remain in full force [**2]  and virtue in law." There were no pleadings in the case, and a judgment was confessed by the defendants, subject to the opinion of the court, whether under the acts of assembly under which the bond purports to be taken, or otherwise, the action could be sustained by the plaintiff. The following statement of facts was afterwards agreed to: The office of supervisor of the turnpike roads in Baltimore county, being vacant by the resignation of the supervisor previously appointed, William Kerr, (one of the defendants,) was appointed such supervisor, by the levy court of said county, on the 3d of October 1804, to fill said office, and duly qualified as such; and in consequence of said appointment Kerr, on the same day, entered into the bond on which this suit is instituted, with William Jones, &c. (the other defendants,) as his securities. To enable Kerr to perform the duties of such supervisor, he received the tolls collected on the said roads, which are appropriated by the act of 1801, ch 77, to the making and repairing said roads, and were to be so disbursed and expended agreeably to the provisions of the said act, under the authority and direction of the levy court; and for the like [**3]  purpose he applied to and received from the levy court orders for money on the county collector of the tax, levied for making and repairing said roads, and agreeably thereto received the amount of them from said collector. Upon a settlement of his accounts and transactions, as supervisor aforesaid, for the second year of his being supervisor, on the 1st of October 1806, at which time he resigned his office, there remained of the monies received by him, unexpended and unaccounted for, the sum of $ 2773 05, for the recovery of which this suit was brought. Kerr settled an account as supervisor with the said court for the first year of his acting as supervisor, on the 1st of October 1805, and accounted for all monies which had been previously received by him as supervisor, by showing the rightful expenditure of the same. He was allowed by said court, in his first settlement, for his services for the first year as supervisor, the sum of $ 750, and refused to act any longer unless they could allow him a greater sum for the future, and the sum of $ 800 was allowed to him accordingly by said court, in his last settlement for his services as supervisor for the second year. The sum above mentioned [**4]  which remained in the hands of Kerr, might have been laid out and expended by him as supervisor. At the time of the resignation of Kerr, there was due and unpaid to sundry persons the sum of $ 900, for provisions and other necessary articles furnished to him as supervisor, which sum the levy court paid to the persons to whom it was due after the resignation of Kerr. The sums which the levy court paid after Kerr's resignation, for articles furnished him as above stated, and also all such sums as he may have paid or settled as supervisor before or after his resignation, it was agreed should be accurately ascertained by W. H. Winder and T. B. Dorsey, &c. The question submitted to the court was, whether the sureties of Kerr were answerable on the said bond? The county court gave judgment for the plaintiff. From that judgment the defendants appealed to this court.  

DISPOSITION:
JUDGMENT REVERSED.  

COUNSEL:
Martin and Winder, for the Appellants. 1. The declaration is a joint one against all the obligors, as defendants, and the breach assigned therein is that they had not paid the penalty of the bond, when it ought to have been stated that neither the defendants, nor either of them, had paid. The bond is [**5]  joint and several, and a payment may have been made differently from that which the breach in the declaration alleged. 2. The court below, under the agreement of the parties, could enter no judgment except for the sum which should be ascertained to be due by the persons appointed for that purpose. 3. The levy court had no authority to take the bond. The act of 1801, ch. 77, s. 2, directs "that the justices of the levy court of Baltimore county shall meet at the court-house of said county on the second Monday in February next, after the passage of this act, and shall proceed to appoint a fit and proper person as supervisor of the turnpike roads in Baltimore county, who shall, before he acts as such, give bond," &c. "and the said supervisor shall, before he acts as such, take the following oath before some one of the justices of the levy court, to wit," &c. The act gives no authority to make any appointment of a supervisor, except on the second Monday in February next after the passage of the act. The statement does not show that the levy court did meet at the time and place mentioned in the law, and make the appointment of supervisor. Although there had been a previous appointment,  [**6]  (which is not stated to have been regularly made,) and the person appointed had resigned, the law gives no authority to the levy court to meet at any other time, and make a new appointment. Where a special authority is delegated, it must be strictly pursued. Here the appointment of Kerr having been made on the 3d of October 1804, was not a legal appointment, and the bond by him given under that appointment is void, and the sureties therein are not answerable. They could be answerable only where the appointment was made in conformity to the law. That a special authority must be strictly pursued, they referred to Flannagan's Lessee vs. Young, 2 Harr. & M'Hen. 42, (argument of J. T. Chase.) 4. The statement does not show how the oath of the supervisor was taken, if it was taken at all. It was necessary to his sureties that he should take the oath prescribed by the law, as it was a great security to them that he would discharge his duties faithfully. 5. The repayment of money placed in the hands of the supervisor, was not one of the duties covered by the bond, and for which his sureties were liable. By the 14 section of the act of 1801, ch. 77, the supervisor appointed in virtue of that [**7]  act, should, on or before the first Tuesday of October annually, settle his accounts on oath, with the levy court, &c. and when passed by that court the same shall be lodged in the clerk's office, &c. But there is nothing in said act about paying over any balance which may be due from him. No neglect is stated to have taken place in Kerr, and the repayment of money placed in his hands was no part of his duty. If money unexpended remained in his hands, when he resigned he was bound to pay it over to some one; but he was guilty of no violation of his duty in not paying it over until he was called on and had refused to pay it over to the new supervisor, if the law justified such appointment. But until there had been such appointment and neglect to pay to the new supervisor, no suit could be brought against him. There could be no breach until he was called upon by some one properly authorised to receive, and he had refused to pay African Company vs. Mason, 10 Mod. 227. To show that the bond of the collector of a tax, which had not been laid at the time prescribed by law, was void, and the sureties therein were not liable, they referred to Quynn vs. The State, use Pue et al. 1 Harr. & Johns.  [**8]  36.

No Counsel argued for the Appellee.  

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

OPINION:

 [*564]  THE COURT reversed the judgment of the County Court on two grounds--1. There was a special authority delegated which had not been strictly pursued by the levy court in making the appointment of a supervisor on the day directed by the act of assembly. 2. There was no replication setting forth the breaches.
JUDGMENT REVERSED.  

6 of 38 DOCUMENTS 

M'MECHEN vs. THE MAYOR, &c. of BALTIMORE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

3 H. & J. 534; 1815 Md. LEXIS 22 

May, 1815, Decided 

PRIOR HISTORY:
 [**1]   ERROR to Baltimore County Court. This was an action of debt, brought in the names of The Mayor and City Council of Baltimore, for the use of L. Hollingsworth and A. A. Williams, against the defendant, (now appellant,) on a bond, executed on the 10th of February 1803, by T. Yates, M'Mechen, (the defendant,) and J. Walsh, in the penalty of $ 3000, with the following recital and condition. "Whereas the above bounded Thomas Yates hath obtained from the mayor a license of admission under the seal of the city of Baltimore, to use and exercise the trade and employment of auctioneer within the said city; and by an ordinance of the corporation of the said city persons obtaining such license are directed, before they take upon themselves the duties of said office, to give bond, to be approved by the said mayor, for the faithful performance of the several trusts and duties required of them by the aforesaid ordinance. Now the condition of this obligation is such, that if the above bounden Thomas Yates, do and shall pay, and duly satisfy, all just claims that may be against him as auctioneer, and in all things well and faithfully perform the several duties required of him by the ordinance, entitled,  [**2]  An ordinance for licensing and regulating auctions within the city of Baltimore, and precincts thereof, then this obligation to be void, else to be and remain in full force and virtue." The declaration was in the usual form. The defendant pleaded, 1. General performance. 2. That Yates obtained his license as auctioneer before he had given bond. 3. That no license was granted to Yates after he had given bond. The plaintiffs replied to the first plea, averring a nonperformance, and setting out the ordinance of the 20th of February 1801. That Yates on the 10th of February 1803, after the making of the writing obligatory aforesaid, on his application to the mayor, obtained from him a license as auctioneer for the term of one year, and that he acted as such for one year. That Hollingsworth and Williams, on the 15th of July 1803, delivered and entrusted to Yates, as auctioneer, certain goods and merchandize, to wit, four pipes of gin of the value of $ 487 30, to be by him sold as auctioneer, at auction, on their account, and for their use and benefit. That Yates did sell the said goods at auction for the sum of $ 474 97, over and above his commission, &c. That Yates received the money which [**3]  he had not paid over, &c. To the second plea there was a similar replication--that Yates did not obtain his license as auctioneer before he duly executed and delivered to the plaintiffs a bond, with security to the satisfaction of the mayor. To the third plea they replied, that after Yates had duly executed and delivered to the plaintiffs his bond with security, to the satisfaction of the mayor, the mayor granted to Yates a license, &c. Issue joined on the replication to the first plea. The defendant rejoined to the second replication, that Yates never did, as auctioneer, sell the said goods, &c. belonging to the said Hollingsworth and Williams. To the third replication he rejoined, protesting that the said goods were not delivered to Yates to be by him sold as auctioneer, but that the said Yates was requested by H. & W. to sell the said goods at private sale, and that he did, at their request, sell the said goods at private sale. The plaintiffs surrejoined to the rejoinder to the second replication, that Yates did sell the said goods at auction. Issue joined. To the rejoinder to the third replication they surrejoined, protesting that the goods were delivered to Yates to be by him [**4]  sold as auctioneer; that they did not request him to sell the said goods at private sale. Issue joined.

1. The plaintiffs at the trial, offered in evidence the bond declared upon, and proved that it was executed by the persons whose names were thereto subscribed; and also gave in evidence, that a license was granted to Yates, as auctioneer, after the execution and delivery of the bond. They further proved, that Williams & Hollingsworth sent to Yates, after the execution and delivery of his bond, and after the granting the said license, and before the end of a year thereafter, the goods and merchandise in the replications mentioned, to be sold at public auction, and that they were sold at public auction, and the sum of money in controversy was by him, the said Yates, received and not paid over by him to Williams & Hollingsworth. The plaintiffs further gave in evidence, that the mayor of the city of Baltimore had previously given general instructions to the register to deliver copies of the said bond to any person having claims against Yates, as auctioneer, and that the bond, upon which this suit was instituted, was in pursuance of the said instruction, delivered to Williams & Hollingsworth.  [**5]  The defendant then prayed the opinion of the court, and their direction to the jury, that upon this evidence the action could not be sustained for the use of Williams & Hollingsworth. This direction the Court, [Nicholson, Ch. J. and Hollingsworth, A. J.] refused to give. The defendant excepted.

2. Evidence was then offered that the gin mentioned in the replications was sent to Yates, as auctioneer, to be sold at public auction, but that he was instructed not to sell it for less than a certain price. That it was offered for sale several times at public auction, without bringing the price limited; and that afterwards Yates had an offer for it at private sale, to the amount of the limit, and that he then sold it, which was his usual and common course in cases of goods sent to him to sell, and that such course of business was well known to the merchants of Baltimore for many years. The defendant then prayed the court to instruct the jury, that if they believed these facts, the plaintiffs were not entitled to recover. But the court directed the jury, that if they believed the gin to have been sent to Yates to be sold by him at public auction, and that he sold it at private sale,  [**6]  without the authority of Williams & Hollingsworth, and did not pay over the proceeds, that it was a breach of the condition of his bond as auctioneer. The defendant excepted; and the verdict and judgment being against him, he brought the present writ of error.  

DISPOSITION:
JUDGMENT AFFIRMED.  

COUNSEL:
Martin and Pinkney, for the Plaintiff in error, contended, that an individual could in no case sue on a public bond, unless the law, under which the bond was taken, authorised such a suit; and that as the ordinance of the corporation of Baltimore of the 20th of February 1801, under which the bond upon which this action was brought was taken, contained no such provision, this suit could not be sustained. They referred to the acts of 1715, ch. 39, s. 39; ch. 46, s. 4, 7; 1716, ch. 1, s. 3, 5; 1729, ch. 24; 1742, ch. 10, s 2, 3, 7; Feb. 1777, ch. 8, s. 6; 1784, ch. 61, s. 4; 1785, ch. 72, s. 2, 8, 9, 10; 1790, ch. 12; 1794, ch. 54; 1798, ch. 101, sub ch 3, s. 10, sub ch. 12, s. 4. Sterryton vs. Day, Styles, 18. Arlington vs. Merricke, 3 Saund. 412, 413, 414, 415, (and note.) The State, use of M'Nielly vs. Waites, 3 Harr. & M'Hen. 241.

Harper and Winder, for the Defendants in error, relied on M'Mechen [**7]  vs. The Mayor, &c. of Baltimore, 2 Harr. & Johns. 41.  

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

OPINION:

 [*538]  THE COURT, on both bills of exceptions, concurred in the opinions given by the court below.
JUDGMENT AFFIRMED.  

7 of 38 DOCUMENTS 

M'MECHEN & SULLIVAN VS. MAGGS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

4 H. & J. 132; 1815 Md. LEXIS 19 

December, 1815, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from the Court of Chancery. On the 22d of March 1809, J. Maggs, (now appellee,) filed her bill against one J. F. Levy, stating, that holding 13 shares of stock in the Union Bank of Maryland, and one share in the Bank of Baltimore, on the marriage of her daughter Ann to Levy, and with a view to advance him by making him appear to be the owner of those shares, she caused them to be transferred to him in the year 1805, under a private agreement that she should have the dividends accruing thereon during her life, and upon her death before her said daughter, the said stock was to belong to her said daughter, subject to her sole and absolute use and disposal. That in July 1806, Levy being desirous to purchase from one J. Fowble a house and lot in Eutaw street, in the city of Baltimore, the complainant was solicited to give her consent, and she did give her consent, that the stock in the Union Bank should be sold to raise money to aid him in paying for the house and lot, he positively promising the complainant to convey and make over the house and lot, to secure to the complainant, and his wife, the money which the stock should bring; thereby agreeing to change the rights of the complainant [**2]  to the stock, and the dividends thereof, as above set forth, into a lien upon the house and lot to an equal amount, the interest thereon to be paid yearly. That the stock was sold on the 21st of August following, and produced the sum of $ 1384 50, which Levy received, and applied in party payment for the house and lot; and he having fully paid for the same, received a conveyance therefor from Fowble on the 22d of August 1806. That Levy, although applied to, &c. refused to perform his said promise, &c. And since the death of the said Ann, which happened in December 1808, he had positively denied and refused either to pay to the complainant the amount of money produced by the sale of the stock, or to replace the same, or to give the said conveyance on the house and lot to secure the same, or even to pay the last year's interest due thereon--the former interest being paid by him. That he also refused to make her any satisfaction for the one share of stock in the Bank of Baltimore, or to transfer the same to her, or even to pay her the dividends thereon received by him. Prayer for a decree to compel a transfer of the one share of stock in the Bank of Baltimore, also to cause and procure [**3]  to be transferred and returned to her 13 shares of the stock in the Union Bank, or to secure the payment of the said amount received by him for the same, with interest thereon, by a conveyance and mortgage of the house and lot, &c. Also for general relief. On the coming in of Levy's answer, and the return of testimony taken under a commission issued for that purpose.

KILTY, Chancellor, (December term 1810)--Decreed, that the defendant should transfer to the complainant one share of stock in the Bank of Baltimore; and that he should pay to the complainant the sum of $ 1467 57, being the sum received for the Union Bank stock, $ 1384 50, with one year's interest thereon, and also with interest on the said sum of $ 1384 50 from the 22d of March 1809, (being the time of filing the bill,) until paid, and costs. Decreed also, that in case the defendant should not pay to the complainant the sum so decreed to be paid on or before the 1st of March 1811, the house and lot in Eutaw-street, in the proceedings mentioned, should be sold, &c.

The sum of money decreed not having been paid, the trustee appointed for that purpose made sale of the house and lot on the 1st of April 1811, to W.  [**4]  W. Taylor, for the sum of $ 5000, which was ratified on the 17th of June 1811. On the 25th of March 1811, M'Mechan and Sullivan, (the now appellants,) filed their petition, stating that the said Levy being seized and possessed of a house and lot in Eutaw street, in the city of Baltimore, applied to them to advance him a sum of money, or to become his endorsers on certain promissory notes to be discounted at bank, and that the said house and lot should be pledged for such accommodation; and that unless the notes so to be endorsed were regularly taken up by him when required, he would give a mortgage on the house and lot to secure them from loss. That they being thus applied to, and knowing Levy to be seized and possessed of the said house and lot, and believing him to be a man of honour, and willing to assist him if secured against final loss, they did agree with him, upon these his proposals, to lend him their names and credit to enable him to engage in business for the support of himself and family, being the objects he stated to have in view, and that they did in 1807, 1808 and 1809, advance upon their paper and credit to him, the sum of $ 5000, when they were informed that he could [**5]  not, on reasonable terms, have an accommodation, in consequence of which, they (being then the makers and endorsers for him of sundry promissory notes,) were compelled to take up the said notes, and to receive from him a mortgage of the said house and lot, which he executed to them on the 8th of July 1809, according to the engagement made by him to them, and on the faith of which they originally became bound for him, and gave him their credit. That at the time they advanced their credit to him, they had no knowledge that any person had, or pretended to have, any claim either legal or equitable on the said lot and premises; and that they would not have accommodated him had they not believed that he had an indefeasible title to the same in law and equity, and that he was able, and would, when required, mortgage to them the same; and that the being unable to pay said advances, afterwards, on the 23d of February 1810, gave an absolute deed to them for said house and lot. That since they accommodated the said Levy, a certain J. Maggs, (the defendant,) filed a bill against him, setting forth some private claims against him, and insisting that she had, by virtue thereof, some equitable lien [**6]  against the said property, and has by a decree of this court obtained an order for the sale thereof, and a certain T. B. has been appointed trustee to make the sale, who has advertised the same for sale on, &c. That they were not parties to the said suit or decree, and that Maggs, long before she filed her bill against Levy, commenced suit against him in Baltimore county court, and at March term 1809, obtained judgment against him for the same sum of money, which has been decreed to be paid her by Levy. or the said house and lot be sold for the purpose of satisfying the same, and as they understand for the same claim, as will appear by the said judgment, &c. by which they conceive she has made her election, and if she ever had any claim on the said property, that she has voluntarily relinquished the same by the recovery of her judgment in Baltimore county court. That if she had not so prosecuted her claim at law, they insist that by the said decree she can have no claim upon the property to their prejudice. Prayer for an order to the trustee to suspend the sale; and a subpena to Maggs and Levy to answer, &c. and abide by the further order and decree of this court in the premises. The [**7]  chancellor did not suspend the sale, stating that the sale when made would be subject to the ratification of the court, and the petitioners might be heard on the subject of their application, according to the notice that would be given. It was agreed that a commission might issue to take the deposition of Levy to be evidence in the cause, subject to any legal objection. The answer of Maggs stated, that she had no knowledge of any sum of money being due from Levy to the petitioners. It stated the bill filed by her against Levy, and the proceedings and decree therein; she admitted a suit was brought by her at law against Levy, on the 1st of March 1809, and that judgment was obtained on the 10th of May 1810, for $ 1448 50, being the amount for which Levy had sold the stock mentioned in the proceedings, and some dividends received by him. That she did not relinquish her lien by proceeding at law, and sets out here ignorance upon the subject; but that she did not mean to receive a double satisfaction. That Levy having become insolvent, and the petitioners having obtained a conveyance of the house and lot before mentioned, before the judgment was obtained, she was prevented from and deprived [**8]  of all benefit of her said judgment or remedy at law. That M'Mechen, one of the petitioners, was informed by her, and others, of her claim upon the property before she had either commenced the said suit at law, or filed her bill in this court. That he was counsel for Levy in both of the said suits, and appeared for him as counsel from the beginning to the end of both suits. That Levy advertised the house and lot for sale on the 27th of June 1809, in one or more newspapers in Baltimore, where the parties then and still reside. That two or three days afterwards, she published in the same newspapers, immediately under Levy's advertisement, a caution to all persons not to buy the property, stating her lien, a and its prosecution in this court, which advertisements, and their contents, she is well satisfied were seen and known to both of the petitioners when they appeared in said newspapers, and before they took the mortgage from Levy. That the mortgage and absolute deed from Levy to the petitioners are fraudulent as to her, and cannot avail to her prejudice, inasmuch as both of the petitioners had knowledge of her lien on the property, when they received said conveyances. That the petitioners,  [**9]  although informed of the proceedings in this court by her against Levy, to enforce her lien, both before and after the mortgage and absolute conveyance, yet the claim they now urge was never made known to this court, nor interposed against her, until after a decree had passed. Nor did she know or even hear of such claim, until shortly after or at the time she obtained judgment against Levy, and it was then through her counsel, on some proposal of compromise. That knowing that her claim is just and right, &c. she prays that it may be paid to her out of the proceeds of the sale. Testimony was taken under commissions, and by agreement the testimony taken in the case of Maggs against Levy was admitted in evidence in this case. The death of Levy was suggested.

KILTY, Chancellor, (July term 1812.) The prayer of the petition was, that this court would order the trustee to suspend the sale until further order, and it is not perceived that any other relief was prayed. This order was refused, but it was stated that the petitioners might be heard thereafter. The chancellor is of opinion, on consideration of the proceedings and arguments of the counsel, that there is nothing to entitle the [**10]  petitioners to the interposition of this court. Decreed, that the petition be dismissed, but without costs. The petitioners appealed to this court.  

DISPOSITION:
AFFIRMED.  

HEADNOTES:

A bill filed in chancery by J M stating, that being the owner of a certain number of shares of stock in a bank, on the marriage of her daughter to J L, and with a view to advance him by making him appear to be the owner of those shares, she caused them to be transferred to him in 1805, under a private agreement that she should have the dividends during her life, and if she died before her daughter that the stock was to belong to her daughter, subject to her sole and absolute use and disposal. In 1806 J L, about to purchase a house and lot solicited J M, to which she consented, that the stock should be sold to raise money to aid him in paying for the property, he promising to convey it to secure to her and his wife the money the stock should bring, thereby to change her right to the stock into a lien upon the property to an equal amount. The stock was sold, and J L received and applied the proceeds in part payment of the property; and having paid the whole purchase money, received a conveyance therefor in August 1806 J L, though applied to for that purpose, refused to perform his promise, and after the death of his wife, positively refused either to pay the amount of the money produced by the stock, or to give a conveyance on the house and lot--Decreed, that J L should pay to J M the sum of money received for the stock, with interest, &c. and if not paid by, &c. the property should be sold, &c. The money not being paid, the property was sold in April 1811, and the sale ratified. Before the sale and ratification, M & S petitioned the chancellor, stating that at the solicitation of J L they had in 1807, 1808 and 1809, endorsed for him sundry promissory notes. Under an agreement that if they were not regularly taken up by J L, he would give to them a mortgage on the above mentioned house and lot. That M & S were compelled to take up the notes, and J L in July 1809, executed to them a mortgage of the property, according to the engagement above mentioned. When M & S endorsed the notes for J L, they had no knowledge that any person had any claim, either legal or equitable, on the house and lot. In February 1810, J L gave an absolute deed to M & S for the property. When the mortgage and deed were executed, M and S are supposed to have had knowledge of the lien of J M. J M before filing her bill against J L, brought suit against him at law, and in March 1809 obtained a judgment for the amount of her claim for the stock. M & S, by their petition, prayed a suspension of the sale, &c. The sale was not suspended, but the chancellor intimated that the sale, when made, would be subject to the ratification of this court, and M & S would then be heard, &c. Afterwards he decreed, that the petition be dismissed--which on appeal was affirmed.  

COUNSEL:
Martin, for the Appellants. The question is, who had the first lien on the house and lot, the appellants or the appellee? He contended that the contract alleged by the appellee was, as to creditors, illegal; that it gave to Levy an appearance, without the reality, of property. That if it was valid, yet the appellee was only to have the dividends, the rest of the interest was vested in Levy's wife, and as it was personal property, on her death it belonged to the husband. He also contended, that as the appellants were ignorant of any interest the appellee might have had in the property at the time they became endorsors, although they became acquainted with it before they obtained their mortgage and deed, still the mortgage and deed must prevail. That a person who has an equitable right, if he obtains the legal estate, will prevail over a prior equitable right, provided he was ignorant of such prior equity originally, although he may become informed of it before the legal right is obtained. 2 Fonbl. 306, 309, (note e.) That [**11]  the appellee made her election to proceed at law, she was therefore precluded from proceeding in equity. Upon the principle of election, if a person has two remedies, one at law and one in equity, if he proceeds at laws, he is precluded from going into equity, and so vice versa.

Kell, for the Appellee. The appellants might have become parties to the original suit, and brought forward their claim. Having neglected to do so, they are now precluded. Their bill only prayed a suspension of the execution of the decree in the former case, and no other relief. The decree in the former case was a proper decree, and cannot be now reversed. The appeal in this case is from the refusal of the chancellor did wrong, can they reverse the original decree? The sale was not suspended, but has been made and ratified. Can this court now set it aside? As to the matter of election urged by the appellants, it is answered that they ask the aid of a court of equity to enforce that election, (if it is such,) whilst they have, by the joint act of themselves and Levy, the defendant in equity, rendered that election or remedy unavailing, by obtaining the mortgage from Levy, the defendant, after the bill was [**12]  filed, and notice in fact of the appellee's lien--2 Fonbl. 156, 157, (note), 309, 471. To the same objection, and also that insisted on of uniting the junior equity to the legal estate so acquired, it is answered, that the bill in the case of Maggs vs. Levy seeks no new right--none by the decree could be created. It only enforces the right existing at the time the bill was filed. The decree operating upon the state of things, and rights existing, at the time of the bill filed, has relation back to that period, and binds the parties. Hence the mortgage cannot in equity be viewed as fair and equitable, or the mortgagor and appellants permitted by such means to deprive the decree of its proper office and effect.

Pinkney, in reply. The petition in this case contains a prayer for general relief, as well as a suspension of the sale in the case of Maggs vs. Levy. This proceeding was not to set aside the decree in that case, which was a good decree as between the parties. The appellants could not interfere with the proceedings in the other case--they were not parties, and it could not injure their rights. A bill of interpleader does not apply to it. It was time enough for the appellants [**13]  to file an original bill when they found the court was about to interfere with their interest. They did not know that the chancellor would decree a sale. It is every day's practice to suspend proceedings in chancery similar to the suspension of an execution on a judgment at law. It is not to interfere with the decree, but to bring a new case before the court, in which there are different facts, different parties, and different interests. If these interests are good, then the former decree is finally suspended. Notice of Maggs' bill does not affect the right of the appellants more than if no bill had been filed by her against Levy. A proceeding in a court is presumptive notice, but it never produces any effect except between the parties to the proceedings. 2 Fonbl.. 156. It could operate no further than express notice, which could not interfere with the appellant's prior equity. If their equity was perfected before the equity of the appellee, then the bill by her against Levy does not affect their case. The suit at law was no notice but of what the declaration contained. A bill in chancery is notice of nothing more than what is contained in it. The proceeding at law was negative notice [**14]  of any equitable claim. By her proceeding at law the appellee elected how she would proceed. How could she proceed at law while the equitable claim remained under the contract she sets out in her bill? Her suit at law demanded a reimbursement of the whole sum. In equity her demands are different. On a disaffirmance of the contract she could proceed at law, and on no principle, but on rescinding the contract, could she proceed at law; and by doing so, she considered the contract as at an end and rescinded, and the money in the hands of the borrower for the use of the lender. Levy failed to execute the contract, and she proceeded at law for money had and received. If a suit is brought at law, is not relief in equity given up? Suppose a contract by parol for the sale of land, and the purchase money is paid, but the party refuses to convey. Here there are two remedies, at law or in equity, to recover back the purchase money, (disaffirming the contract), or to filed a bill to enforce the contract. But if the contract is disaffirmed, and a suit is brought at law for money had and received, the party cannot resort to equity for relief. The party has made his election, and he cannot have both [**15]  remedies--if resort is had to one, the other is abandoned. When the mortgages deed was executed to the appellants, the appellee had no equitable claim--she had abandoned any she might have had by proceeding at law. She ought to have abandoned her suit at law by a discontinuance when she found Levy was insolvent; but instead of that she proceeded to judgment. The stock, while it stood in Levy's name, was affected by the appellant's lien. Standing in his name it gave him credit, and any secret contract was fraudulent against creditors. The change to the house and lot did not alter the case. It bettered it, as it was a visible object. There was a legal conveyance to Levy, which was recorded, and it was notice to all the world, so that any person was as well justified in crediting him upon the house and lot, as upon the stock. Shall a latent equity be set up to defeat honest creditors? It will not be tolerated that an equity lying hid and in secret, may be brought forward after creditors have lent their money without any knowledge of it. Under a belief of a solid security the money is loaned by the appellants--they are deceived and defrauded. The appellee does not deny the facts alleged [**16]  in the appellant's bill, but puts them upon their proof. Levy had no interest, though made a defendant. When he was examined as a witness he had no interest--having been discharged as an insolvent debtor. A defendant may be examined in a cause in equity--one co-defendant may be examined against another. The court may order him to be examined, and if he is disinterested, he is a competent witness. Here there was an agreement to take Levy's deposition, and his testimony proves the appellant's equity. To set him up in business the appellants lend him their responsibility. This continued in 1807, 1808 and 1809, by renewal of the notes--Levy not being able to taken them up. There was notice in 1807 or 1808 of the appellee's equity. In 1809 there was presumptive notice by the bill. The express notice was in June, and the mortgage in July 1809. It must be presumed that all the advances by the appellants were made before 1809. The whole was made in 1807, when Levy set up in business; and it cannot be inferred that the advances were made after the notice of the appellee's equity. Their equity was perfected before they had notice of the equity of the appellee.  

JUDGES:
The cause was argued before [**17]  CHASE, Ch. J. and BUCHANAN, EARLE, JOHNSON, and MARTIN, J.  

OPINION:

 [*138]  DECREE AFFIRMED.  

8 of 38 DOCUMENTS 

STEWART et al. VS. M'INTOSH.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

4 H. & J. 233; 1816 Md. LEXIS 14 

June, 1816, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court. This was an action of assumpsit. The declaration contained six counts. The first and second for goods, &c. sold and delivered, and a quantum meruit, &c. The third, fourth and fifth, the common money counts, and the sixth on an insimul computassent. The general issue was pleaded.

1. The plaintiffs, (the appellants,) at the trial, read in evidence the following account in the defendant's hand writing, rendered to them as owners of the schooner Holstein, by the defendant, (the appellee,) and a certain Patrick Wood, trading under the firm of Duncan M'Intosh and Wood, viz. "Dr. The Owners of Schooner Holstein, their account current with Duncan M'Intosh and Wood

________________________________________________________________________________

To amount of disbursements of schooner Hol-	
  stein, as per account rendered by Mr. John	
  Imlay, dated 25th of August 1800,	$ 1,443   	
To amount of premium of insurance paid on	
 schooner Holstein by Mr. John Imlay, as	
 per his account furnished	780   	
To this sum due by Messrs. David Stewart	
 and Sons, as per their account furnished	
 Mr. Edward Hall, and which we stop out	
 of Holstein's cargo,	5,195 46	
To this sum paid in St. Thomas's on two bills	
 of exchange drawn by us on David Stew-	
 art and Sons, and which they suffered to	
 return protested	460   	
To this sum accounted with Mr. Edward Hall	
 for the balance of this account,	8,677 13	
	
Cr.	$ 16,555 59	
	
By nett proceeds of sales of the cargo of cof-	
  fee from Aux Cayes, as per sales rendered	
  pr. Mr. John Imlay, dated 25th of August	
  1800	15,355 59	
By amount of schooner Holstein sold for,	1,200  	
	
	$ 16,555 59	
________________________________________________________________________________

 [**2]  

Errors and omissions excepted.

Aux Cayes, 9th May 1802."

The plaintiffs also gave in evidence, that the said schooner Holstein, and the cargo, in the said account mentioned, belonged jointly and in equal portions to the house of David Stewart and Sons, and to the house of Hillen & Williams, which two houses (and who are the plaintiffs in this cause,) had jointly purchased said vessel and cargo, and were partners in that transaction, but in no other. That in the original purchase of said vessel, and her outward cargo, on her original voyage from Baltimore to the Island of Saint Thomas's, and in the transaction and management of the business relating to the original voyage, David Stewart and Sons were the agents of the owners, and as such consigned the vessel and outward cargo to the defendant and Wood, at the Island of St. Thomas, in the West Indies, from whence she was to have been sent to Williams, one of the plaintiffs, at Jacquemel, in the Island of Hispaniola, there to be under his direction and management. That the schooner was so dispatched by the defendant and Wood, but was prevented from arriving at Jacquemel, and got into the port of Aux Cayes, in the same Island,  [**3]  where a certain Edward Hall, acting by the authority of Williams, loaded her with a cargo of coffee, and sent her to St. Thomas, consigned to Wood, which cargo is the one mentioned in the account current herein before set forth; and that at the time of receiving the vessel and cargo, and the proceeds thereof, as stated in the above mentioned account, it was known to the defendant and Wood that both vessel and cargo belonged jointly and equally, to the plaintiffs. The defendant then offered evidence to prove, that before the said account was made out and rendered as aforesaid, David Stewart and Sons were indebted to the defendant and Wood, in the amount of $ 5655 46 as stated in said account, and in consideration thereof did expressly authorize and direct verbally the defendant and Wood to retain in their hands, out of the proceeds of the vessel and cargo, and in discharge of the said debt, the several sums charged by them in the said account, as having been by them so retained, and amounting together to the said sum of $ 5655 46. And further, to show that at the time when the said authority and direction were given to the defendant and Wood, by David Stewart & Sons, Hillen & Williams [**4]  were indebted to David Stewart & Sons in a sum larger than the interest and proportion of Hillen & Williams in the said sum of $ 5655 46, and therefore that David Stewart & Sons had a just right to give the said authority and direction, the defendant produced and offered in evidence certain accounts between David Stewart & Sons, and Hillen & Williams, stated and signed by David Stewart, one of the plaintiffs. But the plaintiffs objected to the evidence so offered by the defendant, and to the said accounts, as competent to prevent the recovery of the plaintiffs. This objection the Court [Nicholson, Ch. J. and Bland, A. J.] sustained, and refused to permit the evidence or accounts to go to the jury. The defendant excepted.

2. The defendant then produced Edward Hall as a witness, who gave evidence that he, by authority from the plaintiff Williams, acting on behalf of all the plaintiffs, purchased at Aux Cayes the cargo of coffee shipped by the schooner Holstein to St. Thomas, and mentioned in the account first stated in the first bill of exceptions, and shipped it as aforesaid for their account and risk, the cost and charges of which shipment and cargo he charged to them in his [**5]  account against them; which account he transmitted to the plaintiff, Williams, some time in the spring of 1800, very soon after the shipment was made; and that the account first exhibited in the first bill of exceptions, was rendered to him, the witness, by the defendant, about the time it bears date, a copy of which account he enclosed to Hillen & Williams, or Williams, some short time after he received the same from the defendant. That Williams, both before and after the rendition of said account to the witness, always alleged against the account rendered against the schooner and her owners, that the voyage from Aux Cayes to St. Thomas, ought not to be charged to the owners of the schooner, but was and ought to be considered as on account of the witness. But the witness insisted on his right to recover the same from said owners, and brought a suit against the plaintiffs, and did recover a verdict and judgment against them for the whole amount of said claim, in Baltimore county court, at March term 1808. That the defendant has never been in Baltimore since the beginning of the year 1800, till just about the time of the institution of this suit. That some time before the said account [**6]  was rendered by the defendant, Williams inquired of the witness if he had ever brought the defendant to a settlement about the Holstein's business. The defendant then prayed the court to direct the jury, that from this evidence they might find that the plaintiff, Williams, assented to the application made by the defendant of the said sum of $ 5655 46, to the payment of the debt due to the defendant from Stewart and Sons. Which direction the court refused to give. The defendant excepted.

3. The defendant then gave in evidence, that after the account of Hall against the plaintiffs, charging them with the cost of the cargo shipped by him to St. Thomas's, was rendered by him to the plaintiff Williams, the said plaintiff did, on the part of the owners, object to the said charge, and refused to consider or accept the said cargo as the property of the plaintiffs, but insisted that it was the property of Hall, and did refuse to pay for it to Hall, and continued so to act and refuse until after the recovery against him, and the other plaintiffs, by Hall. He also gave in evidence, that David Stewart and Sons authorized and permitted the defendant to apply the said sum of $ 5655 46 to the [**7]  payment of the debt due as aforesaid from them to him, but this direction was without the authority of Hillen & Williams. The defendant then prayed the opinion of the court to the jury, that if they believed the facts so given in evidence by the defendant and plaintiffs, as stated in this exception, that then the said conduct and refusal by the plaintiff, Williams, operates in law to preclude the plaintiffs from recovering in this action. This opinion the court also refused to give. The defendant excepted.

4. The defendant then gave in evidence, that the plaintiffs, in repeated conversations and correspondences, admitted that the schooner Holstein had been sent from Baltimore by David Stewart & Sons, by authority from Hillen & Williams, and for account of the plaintiffs, and belonging to them, under the name of The Speculation, to the Island of St. Thomas's, with a view and for the purpose of there assuming Danish colors and a Danish character, and under them of proceeding to the port of Jacmel, in the Island of Hispaniola, on a trading voyage, for the benefit and account of the plaintiffs. That the schooner, with a cargo of flour on board belonging also to the plaintiffs, accordingly [**8]  sailed from Baltimore, for the purpose aforesaid, in the month of October, 1799, to St. Thomas's, and arrived there in the month of November in the same year. That both vessel and cargo were consigned by David Stewart & Sons to the defendant and Wood, by whom they were there put under Danish colors as the property of Jeremiah Vernico, a Danish subject, and despatched to Jacmel, in pursuance of the orders of the owners, and still continuing to be their property according to the original intention and plan. That the vessel and cargo accordingly sailed from St. Thomas's in the month of November 1799, and arrived at Aux Cayes in the island of Hispaniola, on or about the 1st of December following, and were there placed under the direction of the said Edward Hall by the plaintiff, Williams. That the cargo was immediately sold at Aux Cayes by Hall, for account of the said owners, and a new cargo purchased with the proceeds thereof, which new cargo Hall, in the same month of December, sent from Aux Cayes in the schooner to the island of Curracoa, for account of the said owners, from whence the schooner returned to Aux Cayes on or about the 1st of April 1800. That Hall, still acting for the [**9]  owners under the authority of the plaintiff Williams, did then purchase a new cargo of coffee at Aux Cayes, for and on account of the said owners, and put it on board of the schooner; and on or about the 20th day of the same month, dispatched the schooner and cargo from Aux Cayes back to St. Thomas's, consigned to Patrick Wood, of the house of M'Intosh and Wood, as his own property apparently, but in fact for the plaintiffs, or in case of his absence, to a certain John Imlay, then the attorney in fact and agent of the said Wood, to be disposed of for and on account of the plaintiffs. That the said vessel, and the last mentioned cargo, arrived in St. Thomas's in the month of May 1800, and, Wood being then absent, were taken into possession and sold by Imlay as his attorney in fact, who in the month of August in the same year paid to the defendant the nett proceeds of the said sales as a partner of said Wood, for and on account of the plaintiffs, as stated in the account first herein before mentioned. He also gave in evidence, that at the time when the said schooner Speculation was dispatched from Baltimore to the island of Saint Thomas's, with the views and objects aforesaid, and during [**10]  the several voyages of the said schooner as aforesaid, the plaintiffs were citizens of the United States, and residents therein. The defendant then prayed the direction of the court to the jury, that if they believed the said facts, then the voyage from Baltimore to St. Thomas's, from St. Thomas's to Aux Cayes, and from Aux Cayes back to St. Thomas's, were illegal, and that the plaintiffs could not therefore recover in this action. This direction the court gave. The plaintiffs excepted; and the verdict and judgment being against them, they appealed to this court.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

D and W had all account rendered to them as the owners of a vessel, by M and N. The vessel and her cargo, mentioned in the account belonged to D and W, who were partners in that transaction only. D was the agent in purchasing the vessel and cargo, and in the transactions relating to the original voyage, and as such consigned the vessel and cargo to M and W at St. Thomas's, from whence she was to have been sent to W at Jacquemel, to be under his directions. The vessel was prevented from arriving at Jacquemel, and got into Aux Cayes, when E, acting for W, loaded her with a cargo of coffee and sent her to St Thomas's consigned to N, which cargo is that mentioned in the account; and it was known to M and N that both vessel and cargo belonged jointly and equally to D and W Evidence was offered by M in an action brought against him by D and W, that before the account was rendered, D was indebted to M and N in $ 5000, as stated in the account, and in consideration thereof did verbally direct M and N to retain in their hands, out of the proceeds of the vessel and cargo, in discharge of the said debt, the sum of $ 5000 as charged in the account as retained by them; and to show that when the direction was given to M and N by D, W was indebted to D in a sum larger than the interest of W, in the $ 5000, M offered in evidence certain accounts between D and W signed by D--Baltimore county court refused to permit the evidence or accounts offered by M to go to the jury.

M gave in evidence by E, that he E, by authority from W, on behalf of himself and D, purchased at Aux Cayes the cargo of coffee mentioned in the first above mentioned account, and shipped it for their account and risk, the cost and charges of which shipment and cargo, he charged to them in an account which he transmitted to W in 1800 soon after the shipment was made; and the first mentioned account was rendered to E by M in 1802, a copy of which he sent to W soon afterwards. That W, both before and after the rendition of the account to E, always alleged against the account which E rendered against D and W, that the voyage from Aux Cayes to St. Thomas's was and ought to be considered as on account of E; but E insisted on his right to recover from D and W, and brought suit against them, and recovered judgment That M had not been in this state since 1800, until just before the time he was sued in this action. Before the account was rendered by M, W inquired of E if he had ever brought M to a settlement as to the business of the vessel--Baltimore county court refused to direct the jury that from this evidence they might find that W assented to the application made by M of the $ 5000 to the payment of the debt due to M from D.

M then gave in evidence, that after the account of E against D and W, charging them with the costs of the cargo shipped to St. Thomas's was rendered by him to W, W did, on the part of the owners, object to the said charge, and refused to consider or accept the cargo as the property of D and W, and insisted that it was the property of E, and refused to pay E for it, and continued so to refuse until after a recovery against D and W by E That D authorized and permitted M to apply the $ 5000 to the payment of the debt due from D to M but this direction was without the authority of W. Baltimore county court refused to direct the jury, that if they believed all the facts as given in evidence by both parties, that then the conduct and refusal of W operated in law to preclude D and W from recovering.

A vessel with a cargo of flour on board belonging to D and W, citizens of the U S. sailed from Baltimore to St. Thomas in the West Indies in the month of October 1799, with a view and for the purpose of there assuming Danish colors, and a Danish character, and under them of proceeding on a trading voyage for the benefit and account of D and W She arrived there in November 1799, and was there put under Danish colors as the property of J V, a Danish subject, and dispatched to Jacmel by directions of D and W, she still continuing to be their property. In November 1799, she sailed from St. Thomas's and arrived at Aux Cayes in the island of Hispaniola, about the 1st of December following. The cargo was then sold by E H, the agent of D and W, and a new cargo purchased with the proceeds thereof, which new cargo E H in the same month of December sent from Aux Cayes in the same vessel to Curracoa for account of D and W, from whence the vessel returned to Aux Cayes about the 1st of April 1800 E H, still acting for D and W, then purchased a new cargo of coffee at Aux Cayes for D and W, and put it on board the same vessel, and about the 20th of April 1800, dispatched the vessel and cargo from Aux Cayes back to St Thomas's, consigned to N of the house of M and N, as his own property apparently, but in fact for D and W. The vessel and cargo arrived at St. Thomas's in May 1800, and were sold in August 1800, and the proceeds of sale paid to M as the partner of N for and on account of D and W. For the proceeds so paid to M an action of assumpsit was brought against him by D and W -- Held, that the voyages from Baltimore to St. Thomas's, from St Thomas to Aux Cayes, and from Aux Cayes back to St. Thomas's were illegal, being contrary to the acts of congress interdicting commerce with any port or place within the territory of the French republic, or the dependencies thereof, or with any place in the West Indies, or elsewhere under the acknowledged government of France; and that D and W could not recover 

COUNSEL:
Martin, Winder and Mercer, for the Appellants. The defence set up by the defendant in the court below was, that the voyages were illegal, and that although the amount in dispute was received by him as the agent of the plaintiffs, yet that he had a right to retain it, because the plaintiffs could not recover the proceeds of an illegal transaction. They contended--1. That the voyage, under which the proceeds arose, was not an illegal one under the acts of congress then in force. 2. That the money was received by the defendant at the island of St. Thomas, and that as he could not have objected there [**11]  to the paying it over, he could not object here. 3. That the money was not received by the defendant in execution of the contract, as with that he had nothing to do, he being no party to it.

On the first point. The act of congress of the 13th of June 1798, ch. 70, interdicted commerce with "any port or place within the territory of the French republic, or the dependencies thereof, or with any place in the West Indies, or elsewhere, under the acknowledged government of France." This act was to continue in force until the end of the next session of congress, which terminated on the 3d of March 1799. By the act of the 9th of February 1799. ch. 108, there was a similar interdiction after the 3d of March 1799. This act was to continue in force until the 3d of March 1800, when it expired. By the act of the 27th of February 1800, ch. 164, (10.) "all commercial intercourse between any person or persons resident within the United States, or under their protection, and any person or persons resident within the territories of the French republic, or any of the dependencies thereof, shall be, and from and after the second day of March next is hereby prohibited and further suspended," &c.  [**12]  The seventh section declares, "that the whole of the island of Hispaniola shall, for the purposes of this act, be considered as a dependency of the French republic." This act was to continue in force until the 3d of March 1801, "provided, however, the expiration thereof shall not prevent or defeat any seizure, or prosecution for a forfeiture, incurred under this act, and during the continuance thereof." The question arises under the act of 1799, which interdicted the trading to a place acknowledging the government of France. The island of Hispaniola, did not acknowledge itself to be under the government of France, and there is no proof that it was. It is not therefore embraced by the act of 1799. De facto the island was independent, of course the people denied the jurisdiction of France. The island having been named and included by the act of 1800 for the purposes of that act, shows that it was not embraced by the act of 1799. If any one of the voyages was legal, the judgment must be reversed.

On the second point. The money was received by the defendant at St. Thomas, and came within the laws of that island, and if he was bound to pay the money to the plaintiffs there, he is bound [**13]  to pay it to them here. If he had been sued there, he could not have defended himself upon the ground that the money received was the proceeds of an illegal traffic interdicted by the U. S. The law of the place where the obligation or cause of action arises, is the law that is to govern. Desobry vs. De Laistre, 2 Harr. & Johns. 191. Owings & Cheston vs. Nicholson & Williams, (ante 66.) Alves vs. Hodgson, 7 T. R. 241. Phelps vs. Kent, 4 Day's Rep. 96.

On the third point. If the voyage was illegal, yet the defendant cannot take advantage of it. He received the money as an agent, and he is bound to pay it over. He was not a citizen of the U. S. and could not be affected by the transaction, if it was illegal. They cited Cotton vs. Thurland, 5 T. R. 405. Jaques vs. Golightly, 2 W Blk. Rep. 1073. 2 Com. on Cont. 112, 123. Tenant vs. Elliott, 1 Bos. & Pull. 3. Farmer vs. Russell, Ibid 296. Faikney vs. Reynous, 4 Burr. 2069. Petrie vs. Hannay, 3 T. R. 418. Whittingham vs. Thornborough, Prec. in Chan. 20. Barjeau vs. Walmsey, 2 Stra 1249. Lacausade vs. White, 7 T. R. 531. Wilkinson vs. Kitchin, 1 Ld. Raym. 89; and Alcinbrook vs. Hall, 2 Wils. 309.

Harper, for the Appellee. The legal [**14]  principles relied upon for the appellants will not be contested; their application to this case however is denied. The laws might always be violated by the intervention of an agent, if the doctrine contended for on the other side was to prevail. The act of Congress of 1799, was further to suspend, &c. and it interdicted the trade 1. With old France. 2. Her colonies; and 3. Places conquered or occupied by her, &c. 1. Any port or place within the territory of the French republic. 2. Or, of the dependencies thereof. 3. Or, any place in the West Indies. The territory of France might include dependencies and places conquered by the French arms, and remaining under the government of France. 1. The only question is, whether St. Domingo in 1799 came within either of the above descriptions? Was St. Domingo then a dependency of France? This cannot be denied. Our courts are bound to take notice of the political state of foreign countries. To do so they must resort, where the fact is doubtful, to what our government consider to be the particular situation of any country. As to the people of St. Domingo attempting to become independent, it is not to be noticed by our government or our courts, as [**15]  that island has never been acknowledged to be independent by France. If our government were to acknowledge the independence of St. Domingo, it would be involving the country in a dispute with France. The public acts of governments are to be taken notice of by courts. If there is a treaty between Great Britain and France, and one of them cedes to the other an island, &c. then our courts are bound to notice such treaty, because our government takes notice of it. But where there is a contest between the mother country and its colony, our government stands neuter, and considers the colony as under the government of the mother country. 2. There is a great distinction between the appellee and the agents and stake-holders in the several cases cited by the counsel for the appellants. Here the appellee was the agent of the parties, and was apprized of the illegal voyage, and he was privy to the illegal transaction, aiding and assisting in it; and as such agent, and with such knowledge, the money now demanded of him came into his hands. He cited 2 Com. on Cont. 109; and Steers vs. Lashley, 6 T. R. 61.  

JUDGES:
The cause was argued on the last bill of exceptions, before BUCHANAN, EARLE, JOHNSON and [**16]  MARTIN, J. BUCHANAN, J. dissented.  

OPINION:

 [*240]  THE COURT concurred with the court below in the opinion stated in the last bill of exceptions.
BUCHANAN, J. dissented.
JUDGMENT AFFIRMED.  

9 of 38 DOCUMENTS 

SCHWARTZE, et al. VS. TYSON.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

4 H. & J. 288; 1817 Md. LEXIS 22 

June, 1817, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court. Assumpsit for freight, primage and average. The general issue was pleaded.

At the trial the plaintiffs, (now appellants,) gave in evidence, that on the 4th of April 1809, they being owners of the ship James, an American vessel belonging to Baltimore, let her to freight to the defendant, (the appellee,) and a certain William Greetham and John Devereaux, trading under the firm of Greetham and Devereaux, and a certain Thomas Lee, by a charter party of freightment under seal, and duly executed, dated the 3d of April 1809, whereby the master of the vessel was to receive on board of her a cargo of flour and cotton, and proceed to the Island of Madeira, and on his arrival there deliver the cargo unto Isaac Philips, or his order, agreeably to the bill of lading; that the said ship should, if Philips should so order and direct, proceed, after having changed her papers and flag, to Liverpool, and there make a right and true delivery of the cargo to the agents, factors or consignees, of the freighters, provided that said ship be permitted to discharge the cargo at Liverpool, but if she should be prevented, the master with the ship should proceed from [**2]  Liverpool either to Lisbon, Cadiz, or back to Madeira, as the agents, &c. should order--provided that Philips should be at full liberty, on her arrival at Madeira, to order the ship either to the port of Cadiz or Lisbon, without first proceeding to Liverpool. In consideration the freighters promised to lade on board the ship a full cargo of flour and cotton, and pay to the owners as and for the freight or hire of the vessel, at and after the rate of nine shillings sterling for each and every barrel of flour so to be laden on board the said ship, if the said voyage ends at Madeira; eleven shillings and three pence sterling per barrel, if the vessel proceeds from Madeira to Cadiz or Lisbon, without landing her cargo at Madeira, and thirteen shillings and six pence sterling per barrel if she lands her cargo at Madeira, reship the same, and proceeds to Lisbon or Cadiz therewith, or to Liverpool, or if prohibited discharging at Liverpool, shall proceed either to Lisbon, Cadiz, or back to Madeira, with 5 p. c. primage, &c. which said several sums shall be deemed and taken in full of freight, primage, port charges, and all other charges whatsoever, save and except the charges of landing said [**3]  cargo at Madeira, and reshipping the same for England. They further gave in evidence, that the defendant, immediately after the date of the charter party, and in pursuance thereof, put on board of the ship James at Baltimore, 2200 barrels of flour, his property, to be transported to Madeira, and some other port or ports, pursuant to the stipulations in the charter party contained; and that the said ship, with these 2200 barrels of flour on board, together with other flour belonging to the other charterers, sailed under the said charter party from Baltimore sometime in the month of April aforesaid, on the voyage to Madeira, where she arrived sometime in the month of May following, and found there the said Isaac Philips, in the charter party mentioned, who was the agent of the defendant, and the other charterers. They further gave in evidence a proclamation of the President of the United States, bearing date the 19th day of April 1809, declaring and proclaiming that the orders in council will have been withdrawn on the 10th of June then next, after which day the trade of the U. S. with G. B. as suspended by the act of congress, &c. may be renewed. They also gave in evidence, that the [**4]  said ship, on or about the 25th of May 1809, with the said flour of the defendant on board, proceeded from the Island of Madeira, by order of Philips, and with the consent of the master of the vessel, to Liverpool, without either landing any part of the cargo, or changing the flag or papers of the ship, and arrived there a few days after the 10th day of June in the said year, and delivered the defendant's said flour to his agent there, who received it for him and on his account, and paid freight at the rate of two and a half dollars for each barrel, which the captain of the said vessel received without prejudice to the further claim of the plaintiffs for one half of a dollar on each barrel, so as to make up the freight of three dollars per barrel for the voyage from Madeira to Liverpool, which the said agent refused to pay, and for which this action is brought. They further gave in evidence, that Philips sailed from Baltimore to Madeira sometime before the date of the said charter party, and before it was made, and that before he sailed he was constituted the agent of the defendant, and the other charterers of the ship, for the purpose of receiving, directing and disposing, for them,  [**5]  of such cargoes and property as they might send to Madeira in the said ship, or others; and that before he so sailed he, for and by the directions of the defendant, and other charterers, made a contract with the plaintiffs for the said ship, and received particular verbal instructions from said charterers and the defendant to send on said ship to Liverpool from Madeira, in case the laws of the United States should be so altered as to render such a voyage lawful, and in no other case; and that the contract which he made as aforesaid, verbally, for the said ship, was entirely conformable to these orders, which were never in any manner altered by them, or intended to be departed from by him. They also gave in evidence, that at the time of the said voyage from Madeira one dollar per barrel on flour was a reasonable freight on such a voyage. It was admitted that the clause in the charter party, which provides for a change of papers in certain events that might happen in the prosecution of the voyage, was understood to mean a colorable transfer and change of the property to some foreign subject, on whom the laws of the United States could not operate. The defendant then prayed the opinion [**6]  of the court, and their direction to the jury, that upon this proof the plaintiffs were not entitled to recover. And the Court, [Nicholson, Ch. J. and Bland A J.] were of opinion, and so directed the jury, that if the voyage from Madeira to Liverpool was undertaken in consequence of a new contract between the said Isaac Philips, as agent of the defendant, and the captain of the said ship, the action might be supported, but that no evidence of such new contract had been offered, for which reason the plaintiffs could not recover. The plaintiffs excepted; and the verdict and judgment being against them, they appealed to this court.  

DISPOSITION:
AFFIRMED.  

HEADNOTES:

A S in April 1809 being the owner of an American vessel, entered into a charter party of affreightment with N T, to receive on board of her a cargo of flour in barrels, and proceed from Baltimore to Madeira, and there deliver the cargo to J P; and if he should so order, proceed, after having changed her papers and flag, to Liverpool, and there deliver the cargo to the agent of N T, if permission be given to discharge the cargo there; & if not, then proceed to Lisbon or Cadiz, J P was authorized to order the vessel to either Cadiz, or Lisbon, without first going to Liverpool. The rates of the freight were stipulated, viz 9s. sterling per barrel on the voyage, ending at Madeira, 1 s. 3d. sterling if the vessel proceeded from Madeira to Cadiz or Lisbon, without landing the cargo; 13s 6d, if landed at Madeira, and reshipped, and carried to Lisbon or Cadiz, or to Liverpool or if prohibited being discharged at Liverpool. and taken either to Lisbon or Cadiz, or back to Madeira. with 5 p. c. primage, &c. The vessel sailed in April, and arrived at Madeira in May. The vessel, by order of J P, with the cargo proceeded from Madeira to Liverpool, without landing any part of the cargo, or changing the flag or papers, and arrived there after the 10th of June, & delivered the cargo to the agent of N T The proclamation of the President of the U S of the 19th of April 1809, declared that the orders in council will have been withdrawn on the 10th of June then next, after which day the trade of the U S with G B, as suspended by an act of congress may be renewed. On delivery of the flour at Liverpool, the agent of N T paid freight at the rate of $ 250 per barrel, which was received by the captain of the vessel without prejudice to the further claim of A S for 50 cents per barrel, so as to make the freight $ 3 per barrel for the voyage from Madeira to Liverpool, which the agent refused to pay; and for which A S brought an action of assumpsit against N T--Held, that if the voyage from Madeira to Liverpool was undertaken in consequence of a new contract between J P as agent of N P, and the captain of the vessel, then the action might be supported; but that no evidence of such new contract had been proved, for which reason A S could not recover 

COUNSEL:
Harper, for the Appellants. 1. The direction of the court assumes an erroneous principle of law. It rests wholly on the idea that the voyage provided for by the charter party, and proved by the evidence stated in the bill of exceptions, was illegal and cannot be enforced. But this is a mistake. The voyage was not intended to evade the non intercourse or embargo laws, and was not forbidden by them. The goods were not to be placed in Madeira with a view of being introduced into England contrary to law, but with a view of being sent to England [**7]  when the law should be repealed or suspended. It was lawful to send them thither with this view. And it was lawful to send them from thence to England, as soon as the proclamation, suspending the law, appeared, provided care was taken that they did not arrive before the 10th of June 1809, when the suspension was to take effect. In all this there was nothing illegal. Consequently the court erred in assuming, as the basis of their direction, an erroneous principle of law.

2. Their opinion also contains an erroneous statement of fact. It alleges that there was no evidence of any new contract between Philips and the captain, to proceed with the flour from Madeira to Liverpool, without unlading at the former place. Now it is evident that there was no stipulation in the charter party for such a voyage. There were three voyages from Madeira provided for by the charter party, but they all differed from this. It is also evident, from the bill of exceptions, that Philips was fully authorised to make this new contract with the captain; and it is positively stated that the captain did go on this new voyage at the request of Philips. What is this but a contract? There cannot, it is apprehended,  [**8]  be one more express.

No counsel argued for the Appellee.  

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

OPINION:

 [*290]  JUDGMENT AFFIRMED.  

10 of 38 DOCUMENTS 

PRENTISS & CARTER, Garn. of STORY VS. GRAY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

4 H. & J. 192; 1816 Md. LEXIS 7 

June, 1816, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court. This was an attachment on warrant, issued the 21st of January 1811. The affidavit upon which the warrant for issuing the attachment was founded, is in these words: "Commonwealth of Massachusetts, Suffolk county, sc. Be it remembered, that on this 15th day of January, in the year 1811, before the subscriber, judge of the court of common pleas in and for the county of Suffolk, in the commonwealth aforesaid, personally appears William Gray esquire, of Boston, in the said county, merchant, and makes oath on the Holy Evangelists of Almighty God, that Augustus Story, not being a citizen of Maryland, and not residing therein, is bona fide indebted to him the said William Gray, of Boston aforesaid, merchant, (he being a citizen of the United States,) in the sum of fifteen thousand dollars of the lawful money of the United States, over and above all discounts. And the said William Gray at the same time producing to the subscriber the original note, which is hereunto annexed, subscribed by Bradstreet and Story, promising to pay the same sum to Augustus Story, or to his order, and by the said Augustus Story endorsed, for a valuable consideration, to the said [**2]  William Gray, whereby the said Augustus Story became so indebted as aforesaid to the said William Gray. And the said William Gray also maketh oath, that he doth know that the said Augustus Story is not a citizen of the state of Maryland, and that he doth not reside therein. Sworn before me, Wm. Donnison, judge of the court of Common Pleas." Then follows a certificate by the clerk of the Court of Common Pleas for Suffolk county, under the seal of the court, certifying "that the honourable William Donnison is one of the judges of the court of common pleas for the county of Suffolk, in the commonwealth of Massachusetts, duly qualified, and acting in said capacity; and that full faith and credit ought to be given to his legal attestations in court and out, in his said capacity." The promissory note referred to in the affidavit was annexed. The warrant was dated the 21st of January 1811, and under the hand and seal of Robert Gorsuch, directed to the clerk of Baltimore county court, requesting him to file the affidavit and annexed promissory note, and to issue an attachment, &c. The attachment was issued on the 21st of January 1811, by the clerk of Baltimore county court, reciting the warrant [**3]  from Robert Gorsuch, esquire, one of the justices of the peace for Baltimore county, directed to the sheriff of Baltimore county, and commanding him to attach the lands, &c. of the said Augustus Story, to the value of $ 15,000, according to the act of assembly, &c, and make known to the garnishees, &c. A capias ad respondendum also issued on the 21st January 1811; and a short note was filed, and copy sent, with the writ. At March term 1811, the sheriff returned the writ of attachment endorsed, "Laid in the hands of John Miller Prentiss and Robert E. Carter, trading under the firm of Prentiss & Carter, the 22d January 1811, in the presence of Ashael Hussey and John Stevenson--Wm. Merryman sheriff" The capias was returned endorsed, "N. E." The garnishees appeared and defended, &c. At March term 1812, the plaintiff's declaration was filed, and the garnishees pleaded non assumpsit by Augustus Story, and nulla bona; to which there were general replications and issues joined. Verdicts for the plaintiff, damages assessed to $ 16,297 50, upon the first issue, and goods and chattels in the garnishees' hands to the value of $ 4,338 75, upon the second issue. The verdicts were taken, subject [**4]  to the opinion of the court, on a statement of facts, and subject also to all objections that might be legally made, either to the form or substance of the attachment proceedings in case no verdict had been rendered. The facts stated were these.--On the 26th of January, 1811, Bond and Prentiss obtained an attachment against Story, which was laid in the hands of the present garnishees, as also in the hands of Thomas Marean, another garnishee of Story, and returned to the same term of the court as the attachment in the present case. There were funds and effects belonging to Story in the hands of the present garnishees, at the time of the verdict, to the amount of 4,044 49, and at the same time there were funds and effects belonging to Story, in the hands of Marean, to the amount of $ 3,540 43. The questions submitted to the court were, 1. Whether the plaintiff was entitled to recover the funds of Story, in the hands of the present garnishees? If so, then judgment was to be entered on the verdict for $ 4,044 49. And 2d. Whether he was entitled to recover, in addition to the funds aforesaid, the funds of Story in the hands of Marean, in the present suit? If so, then judgment to be entered [**5]  on the verdict for $ 7,584 92. It was admitted that the judge, before whom the affidavit in the attachment proceedings was made, was not, as a judge of the court of common pleas, competent, by the constitution and laws of Massachusetts, to administer an oath out of court. But that he was at the time duly commissioned, and acting as a justice of the peace for the county of Suffolk, and authorized as such, to administer an oath out of court. A pro forma judgment was entered on the case stated for the plaintiff, and condemnation on the verdict for $ 7,584 92, and costs. From that judgment the garnishees appealed to this court.  

DISPOSITION:
JUDGMENT REVERSED.  

HEADNOTES:

Where the certificate of the clerk to an affidavit, on which a warrant was founded directing an attachment to issue, stated that W D "is one of the judges of the court of common pleas for the county of Suffolk, in the commonwealth of Massachusetts, duly qualified and acting in said capacity, and that full faith and credit ought to be given to his legal attestations in court and out, in his said capacity"--Held, that as it did not appear by the certificate of the clerk that the judge had authority to administer an oath, as directed by the act of 1795, ch. 56, s. 2, the proceedings were defective.

Whether or not the following are such legal defects in the affidavit, and warrant directing an attachment to issue, as to defeat the attachment? 1. The affidavit did not allege that the plaintiff was a citizen of the state of Massachusetts, or of any particular state, but that he was of Boston, merchant, a citizen of the United States. 2. The plaintiff did not swear that he produced the note on which the debt was founded, but it was merely recited by the judge that the note was produced. 3. The warrant of R G, on which the attachment issued, did not state, nor was it set forth, that he was a justice of the peace.  

COUNSEL:
Williams, for the Appellants, contended--1. That upon the case stated, the appellee was not entitled to recover the money or property of Story, either in the hands of the appellants, or of Marean, because the proceedings, on which the writ of attachment issued, were defective. 2. That he was not entitled to recover the property of Story in the hands of Marean, because his attachment had never been laid in Marean's hands, even if his proceedings were sufficiently regular to bind the property in the hands of the appellants. As to the first [**6]  point--The appellee's proceedings are defective, inasmuch as, 1st. The affidavit does not allege that the appellee was a citizen of the state of Massachusetts, or of any particular state, but only that he was a citizen of the United States. The first section of the act of 1795, ch. 56, enables only citizens of some one of the United States to have the benefit of the act. He contended that there were citizens of the U. S. who did not belong to any state; as those who live in the several territories, and could not, under this law, issue an attachment, consequently it was not clear by the affidavit that the appellee was entitled to be a plaintiff in attachment. 3. The affidavit is defective in this, that the affirmant does not swear that he produces the note on which the debt is founded; but it is merely recited by the judge that the note was produced. 3. The warrant of Robert Gorsuch, on which the writ of attachment issued, does not state, nor is it set forth in the proceedings, that he was a justice of the peace; consequently it does not appear that the clerk of the county court was authorised to issue the writ. He referred to Jackson vs. Stiles, Coleman & Caine's Cases, 468, where [**7]  the supreme court of New York decided, that the jurats of affidavits must be signed by the judges before whom taken, with the addition of their official descriptions. 4. The certificate of the clerk, which is annexed to the affidavit, is defective, as it only certifies that the judge, who administered the oath, was a judge, and that full faith and credit ought to be given to his acts in and out of court; without certifying that he had authority to administer such oath, which is required by the second section of the act of 1795, ch. 56, and without which the affidavit cannot be good and sufficient evidence. 1st. Admitting, for the sake of argument, that the expressions in the certificate furnish grounds for implying that the judge had the authority to administer the oath, yet the court are not at liberty to make the inference under the provisions of the above section. In Morris vs. Ludlam, 2 H. Blk. Rep. 362, in a plea set up by a garnishee, who had been obliged to pay money to the plaintiff in attachment under the custom of London, the omission to state that the debt was due in the city of London, although necessarily to be implied, subjected him to a re-payment to his original creditor.  [**8]  Again, the constitution and judiciary system of the U. S. provide that the circuit courts of the U. S. shall have jurisdiction (among others) of cases in which the plaintiff and defendant are citizens of different states, or one of the parties is an alien. The courts of the U. S. have decided that this jurisdiction must appear upon the face of the proceedings. And in Bingham vs. Cabot, 3 Dall. Rep. 382, in which case the declaration set forth that the plaintiffs were of Boston, in the district of Massachusetts, the supreme court of the U. S. decided that it was not sufficiently shown that the plaintiffs were citizens of Massachusetts, although they were stated to be of Boston, &c. and though even had they been aliens, it would have been sufficient to give the jurisdiction. In Turner vs. Enrille, 4 Dall. Rep. 7, the declaration stated that the plaintiff was Marquis de Caso Enrille, of     Island, and the defendants were of Newbern, in North Carolina, the supreme court decided that it was not sufficiently averred that the plaintiff was an alien, or that the defendants were citizens of North Carolina. In Abercrombie vs. Dupuis, 1 Cranch, 343, the declaration represented the plaintiffs [**9]  to reside in the state of Kentucky, and the defendants in the state of Georgia, yet the supreme court decided there was no sufficient averment of citizenship. In Hodgson vs. Bowerbank, 5 Cranch, 303, the declaration stated the defendants to be merchants of the district of Maryland, and yet the court determined that the omission of the word citizens was a fatal defect, and that it was not enough to state them to be of Maryland. In Brookes vs. Hunt, Coleman and Caine's Cases, 468, an omission of that which was easily to be inferred, was held to be fatal in an affidavit. The courts in this state have decided, that the omission by the justices who take acknowledgments of deeds, to certify that a feme covert, who comes before them, "makes her acknowledgment without being induced thereto by fear or threats of ill usage of her husband, or fear of his displeasure," is fatal, although they certify that the acknowledgment was made willingly and freely. Although it is impossible that a feme covert could make an acknowledgment of a relinquishment of her interest in an estate, willingly and freely, if it were made under a fear or threat of ill usage from her husband, or fear of his displeasure.  [**10]  In Smoot's Adm'r. vs. Bunbury's Ex'r. 1 Harr. & Johns. 136, it was decided, that certain words in a probate prescribed by law, being omitted, the probate was deemed to be defective. The provincial court quashed an attachment under the act of 1729, ch. 8, in Thompson vs. Towson, 1 Harr and M'Hen. 504, on the ground that the affidavit did not state that the "debt was bona fide due," although it set forth that no part of the money had been paid more than credit given, &c. It was also there contended, that the magistrate's warrant was defective, because he certified that the debt was due as appeared by a bond, when he should have certified it to be due positively, without reference. These several cases show, that the omission to set forth expressly, that which is required to appear by the proceedings, is fatally defective, although enough is stated, from which that which is so material may, or even must be, irresistibly inferred. In the authorities referred to it will be found, that the provisions of the law, which require these particular and special averments, are far less explicit and less precise than the expressions in the second section of the act of 1795, ch. 56, with which this [**11]  certificate purports to comply. This section declares that the affidavit shall not be good and sufficient evidence, unless the fact is expressly averred that the judge had authority to administer such oath. It excludes any other evidence of such authority, than the certificate. 2d. But there is not enough set forth in this certificate, from which it may be inferred that the judge had authority to administer the oath. The certificate merely states that the judge was a judge of the court of common pleas of Massachusetts, and that full faith and credit ought to be given to his attestations in and out of court. This is only certifying that he was a judge, and as such full faith should be given to his attestations. But this statement of his official character, and of the credence due to his official acts, does not come up to the provisions of the second section of the act of 1795, ch. 56, which require that the judge should be of that character, and possessed of those peculiar powers, which entitle him to administer civil oaths out of court. The whole amount of the certificate is, that the person before whom the affidavit was made, was a judge; and unless it can be shown that it is essentially [**12]  inherent in all judges to be clothed ex virtuti officii with authority to administer civil oaths out of court, there is not sufficient grounds even for inferring that this judge was authorised to administer this oath. Now, it is not incidental to all judges to have this power, nor do they exercise this power, but in virtue of a special authority, conferred from time to time by law. Neither does Coke, Blackstone, Comyn or Bacon, in enumerating the powers and authorities of a judge, include that of administering civil oaths out of court, as appertaining to their office. The judges of the court of the King's Bench, having criminal jurisdiction, have authority to administer oaths relative to public offences; but even this power is not possessed by the judges of the court of common pleas. And the judge who administered this oath, in this case, is of the court of common pleas, which court has no criminal jurisdiction in Massachusetts. Courts of justice have essentially, and as appertaining to their very nature, authority to administer oaths in all cases of which they have jurisdiction. Justices of the peace are supposed more peculiarly to have authority to administer oaths in all cases;  [**13]  but it does not appear by this certificate that this judge was a justice of the peace, unless it can be shown that the character of a justice of the peace appertains to his office of a judge. This, however, cannot be admitted, for it does not appear by the books that it always, or even usually, appertains to the office of a judge to be a justice of the peace. The judges of the King's Bench are ex officio justices of the peace, but the judges of the court of common pleas are not; and it is in the highest degree probable, that this judge, who belongs to the court of common pleas of Massachusetts, which resembles the court of common pleas in England, is not a justice of the peace. There are many judges of courts in this state who are not justices of the peace, and who undoubtedly have not authority to administer oaths out of court--as justices of the levy court--judges of the orphans court, and judges of the criminal court, as such. These judges frequently, oftener than otherwise, have the additional character of justice of the peace united to them by a separate commission. And to satisfy the court, in cases of attachments, that the judge had authority to administer an oath, the law requires [**14]  that the certificate of some person belonging to classes therein designated, and who are in a situation to know the extent of the powers of the judges of their states, should set forth--not that he is a judge, for that is not required, and is sufficiently shown by the judge himself--but that he is authorised to administer such oaths. The certificate is to be the only evidence, all other kinds of evidence are excluded. In this certificate nothing more can be extracted from it, than that the judge is of the official character he professes to be. It will be found, by reference to the acts of all legislatures, when they prescribe the taking of oaths, that they specially designate the persons or officers before whom they are to be taken. This would be a useless provision, if there were officers to whom it officially appertained to administer all oaths. In 1 Jacob's L. D. tit. Affidavit, 61, an affidavit is defined to be "an oath in writing, sworn before some person who hath authority to administer such oath." It does not say, sworn before a judge or justice, or other particular officer. The courts in England are authorised to appoint commissioners to take affidavits in causes depending [**15]  before them; and if they are not taken before authorised commissioners, they are not valid. From these considerations, and taking into view the peculiar wording of the second section of the act of 1795, ch. 56, and the expressions of the certificate, on which this discussion turns, it must be concluded, that there is not sufficient grounds for inferring that the judge had the authority to administer the oath in this case, even if the court were at liberty to be satisfied with a mere inference.

The second point. The appellee was not entitled to recover the property of Story in Marean's hands, &c. This position was abandoned by the counsel for the appellee, who considered the objection a valid one.

Winder, on the same side, referred to Hepburn vs. Ellzey, 2 Cranch 445, where it was held, that a citizen of the district of Columbia was not a citizen of a state within the meaning of the constitution; and The Corporation of New Orleans vs. Winter. 1 Wheat. 91, where it was determined that a citizen of a territory could not sue a citizen of a state in the courts of the U. S.

Martin and W. Dorsey, for the Appellee. 1. The oath taken by the appellee, as stated in the affidavit,  [**16]  excludes the idea of his being a foreigner, as he is stated to be a citizen of the United States. His being stated to be of Boston in the county of Suffolk, shows by necessary inference that he is a citizen of Massachusetts. The cases cited arose under the constitution and laws of the U. S. as to the question of jurisdiction, and are not applicable to a case like the present. To show that the affidavit was sufficient they referred to Campbell vs. Morris, 3 Harr. & M'Hen. 535. 2. It is not required by the act that the party should swear that he produces the note, &c. upon which the debt is founded. He is only to swear to the amount due to him, and to produce to the judge the notes, &c. who annexes it to the affidavit. 3. The objection that Gorsuch was not a justice of the peace is obviated, because it is certified by the clerk in the caption of his record, and also in the attachment, that he was a justice of the peace, and that is as sufficient evidence of that fact, as if he had himself stated that he was a justice of the peace. Brydon vs. Taylor, 2 Harr. & Johns. 296. Hall vs. Gillings' Lessee, Ibid 383. Lawrence et ux. Lessee vs. Heister et al. 3 Harr. & Johns, 343, 4. The act very [**17]  strangely requires that the clerk should certify that the judge had authority to administer an oath, without permitting the certificate of the judge to prove itself. The clerk, to follow the words of the act, must use the word such, and that would make his certificate nonsense. It is admitted in the statement that Donnison, the judge in this case, was authorised to administer an oath; and it is to be presumed that he had authority to administer it, or he would not have done so. The clerk certifies that he was a judge, and that full faith and credit ought to be given to his acts. If he had no authority to administer an oath, the clerk would not have said that full faith and credit ought to be given to his acts.

Winder, in reply. The appellee is entitled to strict justice only. He proceeded under an act of assembly giving special privileges to particular persons, and he must show that he comes strictly within its provisions. 1. The appellee's being stated to be of Boston, &c. and the affidavit being made in the county of Suffolk, in Massachusetts, does not necessarily imply that he was a citizen of Massachusetts. The expressions in the constitution of the U. S. upon which the cases [**18]  cited for the appellants were decided, are not so strong as those in our act of assembly. A citizen of the district of Columbia, or of any of the territories, could not obtain an attachment under the act of 1795, ch. 56. The appellee might be of Boston, merchant, and yet not a citizen of Massachusetts. In Campbell vs. Morris, the court only acted upon the points raised, and there was no objection made to the form of the affidavit by the counsel. 2. The act says, and at the same time producing the cause of action, and it should have been asserted by the appellee that the note produced is the one by which the defendant was indebted to him. Here the verity of the note is simply the assertion of the judge, and not that of the appellee. 3. The appellee's counsel seem to think this objection is fatal, unless they can bring themselves within the law, and they attempt to do so by saying the certificate of the clerk supplies the defect. The act says, the warrant must be granted by a justice of the peace, &c. in his character of justice, &c. The question is not whether Gorsuch is a justice of the peace, but whether he did the act as such. The recital by the clerk is unfounded from any thing [**19]  that came from Gorsuch. The clerk might know that he was a justice, but he could not know that he had done the act in his character as such. The recital in the record did not exist when the attachment issued or was returned; and the recital in the attachment is unsupported by any thing appearing, and cannot aid the defect. The clerk's issuing the writ, and stating Gorsuch to be a justice, could not make his illegal act valid. He may have sent his resignation to the executive, of which the clerk had no knowledge, and may not have acted as a justice when he issued the warrant. If he had stated himself to be a justice, then it might be inferred he was what he stated himself to be. 4. No other evidence, but the certificate of the clerk, that the judge had authority to administer the oath, can be received. The act is imperative that it shall not be evidence unless there be a certificate of the clerk that the judge had authority to administer the oath. No admission of the parties can cure the defect. The certificate by the clerk is only that he is a judge, and that to his legal attestations due faith and credit were to be given. He does not certify that the particular act was a legal one.  [**20]  The legal acts which he certified were not those under our laws, but those under their own laws, when he acted as judge of that court of which the clerk certified he was a judge. The incident of administering an oath does not necessarily follow the office of a judge. It is specially given under particular acts of the legislature.  

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

OPINION:

 [*200]  THE COURT stated, that as it did not appear by the certificate of the clerk of the court of common pleas for Suffolk county, in the state of Massachusetts, that the judge, before whom the affidavit to obtain the attachment was made, had authority to administer an oath, the proceedings were defective. The other points raised by the counsel were not decided by the court.
JUDGMENT REVERSED.  

11 of 38 DOCUMENTS 

WOODS, et al. VS. SCHROEDER.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

4 H. & J. 276; 1817 Md. LEXIS 16 

June, 1817, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court. Assumpsit on an inland bill of exchange payable to bearer, and for money lent and advanced. The general issue was pleaded.

The following case was stated, and submitted to the court, viz. It is admitted that the check mentioned in the declaration, and herewith exhibited, to wit:

"No. 283.     Baltimore, 5th May, 1813.

Cashier of the Mechanics' Bank of Baltimore, pay to No. 283, or bearer, twenty-three hundred sixty-four dollars and eighty-two cents.

Wm. Woods & Son."

2364 dolls. 82 cts.

Was given by the defendants, (now appellants,) and which is under the partnership signature, to a certain Casper Otto Muller, who on the day of the delivery thereof passed the same to the plaintiff, (the appellee,) for a valuable consideration. That Muller, in consideration of the delivery of the said check to him by the defendants, gave to them in exchange his own check for the sum of $ 2124 82 cents, and that he paid them the balance in the following manner, viz. $ 30 in cash, and the residue in a check of Wightman & Schade, for the sum of $ 210, which was paid to the defendants at maturity. That the plaintiff on the [**2]  5th of May 1813, presented the said check of the defendants for the said sum of $ 2364 82 cents, to Dennis A. Smith, the cashier of the Mechanics' Bank for payment, which was refused, because the defendants had no funds in bank; and also because the defendants had given directions to the said cashier not to honour the said check, of which non-payment the plaintiff duly notified the defendants. That the check of Casper Otto Muller for $ 2124 82 cents, so given in exchange to the defendants as above stated, was not paid by Muller at maturity. The county court gave judgment upon the statement of facts for the plaintiff; and the defendants appealed to this court.  

DISPOSITION:
AFFIRMED.  

HEADNOTES:

A check payable to bearer passes by delivery, and the bearer of it may sue on it as on an inland bill of exchange, and is entitled to recover in an action on it as such, and for money lent and advanced.  

COUNSEL:
Harper, for the Appellants, contended, 1. That there was no privity between them and the appellee on which an action could be founded.

2. That this check was not a negotiable paper which could pass by endorsement, and was not endorsed.

3. That it cannot be likened to an inland bill of exchange, drawn by the appellants on the bank in favour of Muller; but is a paper of altogether a different character, peculiar to the intercourse between banks and their customers; and

4. That if it could be assimilated [**3]  to an inland bill of exchange, it could not pass without endorsement, and is not endorsed.

A. H. Boyd, for the Appellee. The check on which the suit is founded, was payable to bearer, and was passed to the appellee for full consideration, and without any notice of an objection to the payment of it by the appellants. It is contended by appellee, on what he believes to be the established principles of law,

1. That a check payable to bearer passes by delivery.

2. That the bearer may sue on it as on an inland bill of exchange, and is entitled to recover in this form of action.

He cited Chitty on Bills, 339, 340. Bochme vs. Sterling, 7 T. R. 423. Cruger vs Armstrong, 3 Johns. Cas. 5. Grant vs. Vaughan, 3 Burr. 1516. Hinton's case, 1 Shower's Rep. 235.  

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

OPINION:

 [*278]  JUDGMENT AFFIRMED.  

12 of 38 DOCUMENTS 

RICHARDSON'S Adm'x. VS. STANSBURY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

4 H. & J. 275; 1817 Md. LEXIS 15 

June, 1817, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court. This was an action of assumpsit for money had and received. The general issue was pleaded. In the trial the plaintiff, (now appellee,) gave evidence that Aquila Miles, late of Baltimore county, deceased, appointed by his last will and testament Arnold Richardson, (the intestate of the defendant, the appellant,) John Hutchins and Dixon Stansbury, (the plaintiff,) executors of the said will; and that the said Richardson, Hutchins and Stansbury, took out joint letters testamentary on the said estate. The plaintiff also read in evidence the following administration accounts on the estate of the said Miles, rendered to the orphans court of Baltimore county, to wit: The 1st account, viz.

________________________________________________________________________________
Payments and disbursements,		$ 16,419 92	
Balance due the estate,		1,859 71	
	
Estate accounted for,	$ 18,279 63	
Additional account--Balance former	
   acc't.	$ 1,859 71	
Receipts,   		254 07	
	
		$ 2,113 78	
Payments and disbursements,	$ 987 92	
Commission to executors on	
  $ 18,533 70 at 7 1/2 p. c.	1,390 02	
		2,377 94	
	
   Estate overpaid,		$ 264 16	
________________________________________________________________________________

The plaintiff further gave evidence, that at the [**2]  time of rendering the said account to the orphans court, there remained in the hands of said Richardson the amount of $ 1125 86, part of the assets of the said estate received by him in course of the administration, and retained by him as so much of the commission allowed by said second account, and that he refused to pay to the plaintiff any part of the said sum so retained by him, the commission so allowed by the orphans court on the administration of said estate. The defendant then gave in evidence, that the business of the administration of the said Miles's estate was done and transacted by the said Richardson only. The defendant then moved the court for their direction to the jury, that if they believe the evidence so offered, that then the plaintiff is not entitled to recover. But if they should be of opinion that the plaintiff is entitled, then to direct the jury that they may and ought, (if they believe the evidence,) abate the plaintiff's claim, by deducting therefrom such an amount as they should believe a reasonable compensation to be made by the plaintiff to the defendant, for the said Richardson, having solely done and transacted the business of said administration. But [**3]  the Court, [Bland, A. J.] refused to give either of the directions above prayed, and was of opinion, and directed the jury, that the plaintiff was entitled to recover, and that the jury ought not to make any abatement from his demand because of the said Richardson's having solely done and transacted the business of the said administration. The defendant excepted; and the verdict and judgment being for the plaintiff, the defendant appealed to this court.  

DISPOSITION:
AFFIRMED.  

HEADNOTES:

A R, J H and D S, were by the will of A M constituted his executors, and they obtained joint letters testamentary on his estate. An account was settled with the orphans court, and a commission of 7 1-2 p c. allowed to the executors, which sum was retained by A. R, who refused to pay any part thereof to D S, upon the ground that the business of the administration of the estate of A M was done and transacted by him only In an action for money had and received, brought by D S against A R--Held, that D S was entitled to recover, and that the jury ought not to make any abatement from his demand because of A R's having solely done and transacted the business of the administration.  

COUNSEL:
Kell and R. Johnson, for the Appellant, cited 1 Com. on Cont. 328. 2 Com. on Cont. 131. 3 Bac. Ab. tit. Executors, 32; and Dale vs. Sollet, 4 Burr. 2133.

Winder, for Appellee.  

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

OPINION:

 [*276]  JUDGMENT AFFIRMED.  

13 of 38 DOCUMENTS 

BOYLE, et al. VS. M'LAUGHLIN.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

4 H. & J. 291; 1817 Md. LEXIS 23 

June, 1817, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court. This was an action on the case brought against the defendants, (now appellants,) as common carriers, for negligence in the transportation of flour, &c. The general issue was pleaded.

1. At the trial the plaintiff, (now appellee,) gave in evidence, that in the spring of the year 1813 the defendants formed a copartnership for the transportation of merchandize, as common carriers, from Philadelphia to Baltimore, and from the latter to the former, in packets and waggons, by the way of Elkton and Christiana, and caused notice to be given thereof by the following advertisement in the news papers of Baltimore:

"New Mercantile Line of Philadelphia Packets.

The subscribers respectfully inform the public that they intend running a line of packets to and from Philadelphia via Elkton and Christiana, for the transportation of goods, which will commence on Tuesday next. Persons sending goods by this line will be certain of a speedy and safe conveyance, as they have excellent warehouses at Elkton and Christiana, and good waggons engaged. As the proprietors of this line are about making arrangements with one of the New York lines, and may probably [**2]  extend the connection as far as Boston, they are induced to believe that the public will be materially benefited by its establishment, and respectfully solicit a share of their favours. A packet will leave the head of Smith's Dock every Monday, Wednesday and Friday."

He further gave in evidence, that he on the 21st day of October 1813, at the port of Baltimore, shipped on board one of the defendants' packets, then called The Mercantile Line of Packets, 500 barrels of good, sound, merchantable, superfine flour, to be carried and transported by the route in said advertisement mentioned, to Philadelphia, there to be delivered to Benjamin Stephens, his agent and consignee, he paying freight therefor. And at the time of shipping the same obtained from Hugh Boyle, one of the defendants, the following receipt or bill of lading: "Received, Baltimore, 21st of October 1813, of Captain M'Laughlin, on board The Mercantile Line of Packets, 500 barrels of flour marked M, which we promise to have delivered to Mr. Benjn. Stephens in Philadelphia, (the dangers of the seas, capture, fire, leakage, breakage excepted,) he paying freight for the same 80 cents per barrel.

Hugh Boyle."

He [**3]  further proved, that the flour was carried from Baltimore to Elkton in said packet, and was there landed on the 22d of October in the same year, and arrived at Christiana, (distant from Elkton 10 miles,) part on the 13th and part on the 15th of November following, where it remained till the first of December following. That during the time it so remained at Christiana, a small portion was in the company's warehouse, and the residue was piled up on the shore of Christiana Creek uncovered and exposed to the weather; that whilst it so remained on the shore a considerable rain fell, and occasioned an overflowing of the creek, by which means the flour got wet and much damaged. That on or about the first of December, 388 barrels of the plaintiff's flour were put on board the schooner Friendship, (hired in Philadelphia for the purpose, and not one of the regular packets.) by the defendants at Christiana, to be carried to Philadelphia. That said schooner, soon after leaving Christiana, grounded and half filled with water, owing to the unseaworthiness of the vessel, or the want of skill, or negligence of the captain, or to the vessel being overloaded, which grounding and sinking occasioned [**4]  a further damage to the flour. He further proved that the said schooner Friendship arrived without further accident at Philadelphia on or about the 11th day of December aforesaid, and on or about the 15th of the same month, landed of the plaintiff's flour only 343 barrels which was delivered to Benjamin Stephens, the plaintiff's agent, by Latimer and Murdock, the defendants' agents, and was specially accepted by said Stephens under the reservations and conditions expressed in the following receipt, written by Stephens, dated Philadelphia, December 11, 1813, and addressed to Latimer and Murdock, viz. "The schooner Friendship having arrived here with some flour for me, being part of 500 barrels shipped to my address the 21st of October last, I will receive the same subject to my claim for damage for the short delivery, for the detention, and for the injury done to the flour." The flour so delivered was regularly surveyed and inspected before its removal from the wharf where it was landed, and was found to be much injured and damaged by the circumstances herein before detailed, in its transportation from Baltimore to Philadelphia--and Stephens, the consignee, sent the same to auction,  [**5]  where it was sold for very reduced prices in consequence of the said injury and damage; the residue of the flour by the Friendship, that is to say, 45 barrels, were never delivered but wholly lost to the plaintiff. He further gave evidence that 97 barrels of said flour shipped by him as aforesaid, were shipped by the defendants at Christiana, on board the schooner Lettice, (not a regular packet but hired for the occasion) on or about the 1st of December, which never was delivered at Philadelphia or any other place authorized by the plaintiff or his agent, but was wholly lost to the plaintiff. That the defendants shipped five barrels of said flour on board the Kitty and Sally at Christiana, which were never delivered to the plaintiff or his agent, but were wholly lost; and that ten barrels, the residue of the 500, were never forwarded or delivered to the plaintiff or his agent agreeably to the bill of lading, but were wholly lost. That at the time of the arrival of the plaintiff's flour at Elkton as aforesaid, flour and other merchandize had previously so much accumulated at that place by the undertaking of the defendants to transport and carry the same forward from Baltimore to Philadelphia [**6]  by the same route, that the defendants were unable to transport the same in due and reasonable time, by means of the waggons and vessels which they had and kept employed for that purpose, from thence to Christiana and Philadelphia, and from that cause a delay of from 30 to 40 days occurred in the transportation of said flour. That at the time of the formation of the said co partnership for the transportation of goods and merchandize as common carriers, in March 1813, the coasting trade of the United States was nearly or entirely cut off, and as completely intercepted as it was at the time of the shipment of the said flour, and that the same difficulties and obstacles which existed to the transportation at the time of the shipping of the said flour also existed at the time of the establishment of the line, and none other. That while said flour was piled up as aforesaid, a heavy rain fell and created a great and unusual fresh at that season of the year, and that the said flour, so piled up on the shore of said creek, was by the falling of said rain and the overflowing of the creek greatly injured and damaged. That a sufficient number of waggons and packets or vessels for the transportation [**7]  of the goods and flour aforesaid, might have been obtained and employed by the defendants during the period aforesaid, had they made exertions for that purpose. That the captain of the Lettice did not call at Philadelphia or apply to Latimer and Murdock for instructions relative to the destination of the flour of the plaintiff, but without further or other instructions than those given to him by Nevin & Allen, proceeded and delivered the flour to some person or persons in Lamberton, which said delivery was to a person not authorized to receive the same by the plaintiff, and of which delivery the plaintiff or his consignee had no notice, and such flour was never accepted or received by the plaintiff or his agents, and that the flour shipped on board the Kitty and Sally, or that transhipped on board the Sampson, has not since been heard of by the plaintiff, and is wholly lost to him. That before the establishment of the said line in March as aforesaid, there had been no regular transportation by this route between Philadelphia and Baltimore. That there were other places at Christiana more elevated, where the flour might have been piled on the ground, where it would have been in no danger [**8]  of having been overflowed by the said fresh, and which places were convenient for shipping said flour. That the quantity of goods ordinarily transported by this route before the establishment of said line of packets and waggons by the defendants, was very inconsiderable to what it was afterwards. That the usual time employed in transporting goods by this route from Baltimore to Philadelphia was from 5 to 15 days. That at the time of the arrival of the flour at Elkton the roads between that place and Christiana were in tolerable good order, and that if proper exertions had been made by the defendants the same might have been transported to Christiana in 4 or 5 days, instead of 21 or 23 days which elapsed before the same was transported by the defendants from Elkton to Christiana as aforesaid. He further gave evidence that Stephens, the consignee, after writing said letter of the 25th of November 1813, went to Christiana, and there personally directed Nevin and Allen, two of the defendants, to send said flour to Philadelphia agreeably to the original bill of lading, where he Stephens would himself arrange and prepare the means of its further transportation should he determine to send [**9]  the flour on to New-York. The defendants then gave in evidence, that the 500 barrels of flour mentioned in the plaintiff's declaration, arrived in due season, in good order and well conditioned, at Elk Landing on the Chesapeake bay, and was there unloaded for the purpose of being transported by land carriage across to Christiana, at the head of a small creek which empties into the Delaware bay, that being the ordinary route used by the defendants in the conveyance of goods from Baltimore to Philadelphia. That at the time when the said flour was shipped at Baltimore, it was a fact of general notoriety that the whole coasting trade of the United States was almost entirely destroyed and put an end to by the ships of war of the enemy, and that the transportation of goods and merchandize from one part of the United States to another was altogether inland; that in consequence of this great intercourse, thus carried on, there was a large accumulation of property at Elk Landing, and for the removal of which across the isthmus between the Chesapeake and Delaware bays, the defendants employed more than 130 waggons, being all that they could procure for that purpose within the distance of 30 [**10]  or 35 miles. That the usual number of waggons employed by them for the conveyance of goods in ordinary times did not exceed from 12 to 20. That it was a fact generally known that the roads between Elk Landing and Christiana were much cut up and destroyed by reason of the many heavy loaded waggons daily passing over them at that time, insomuch that the travelling was thereby greatly retarded, as it often happened that a waggon with five horses could not carry more than eight barrels of flour, when the usual load in a different state of the roads was 20 barrels. That the flour of the plaintiff was sent from Elk Landing to Christiana, as soon as it was practicable under the existing and known state of things, and that there was no unnecessary delay, nor any default on the part of the defendants, or their agents or servants, and that the same was delivered at Christiana on the 13th and 15th of November in the year aforesaid, for the purpose of being put on board of boats or vessels to be carried to its place of destination. That for some time previous to the arrival of said flour at Christiana, there had prevailed strong westerly and northwesterly winds, which caused the tides in the creek [**11]  of Christiana to be so low that it was found impracticable for the vessels employed by the defendants to get up to the wharves to load; that owing to the prevalence of these winds, and lowness of the tides, by which even light vessels were prevented from reaching the wharves to receive their cargoes, there was a great and unexpected accumulation of flour and other property at Christiana, insomuch that all the warehouses of the defendants at that place were filled with commodities passing in a regular course of transportation by their said line, and it was found necessary to pile it away in a state of safety on the wharves adjacent to the place of shipment. That a part of the plaintiff's flour, to wit, about 200 barrels, were thus, with other flour belonging to other persons, piled away on a rising ground beyond the reach of ordinary and probable tides and freshes or inundations of the creek. That no other warehouses could be obtained in the said place as they were all occupied and full. That the said warehouses were substantial and good, and that in the ordinary and usual state of transportation, the warehouses of the defendants were greatly more than sufficient for the storage of [**12]  goods conveyed by them, and that every precaution was taken by them to preserve the said flour from injury by its exposure, such as having planks and tarpaulins in readiness, and prepared to cover the same. That while the 200 barrels of the plaintiff's flour were thus situated, the residue being in the warehouses, a sudden, unusual and extraordinary fresh or overflowing, took place in Christiana creek, such as had not occurred for 20 years and upwards previous to that time, by which a part of the said flour, to wit, from 20 to 50 barrels were wetted and damaged, and a part, to wit, 10 barrels, were carried away by the force of the flood and entirely lost, it not being in the power of the defendants to prevent the same. That every means was afterwards used by the defendants to prevent and repaid all the injury to the said flour by being wet as aforesaid, and that the said flour received no damage whatever from rain or weather, or from any other cause than that which is here stated. That the whole of the flour of the plaintiff, except 10 barrels which had been swept away by the force, of the current, were shipped on board of vessels on the 1st of December in the year aforesaid, that [**13]  being the earliest period of time at which the vessels could reach the wharves for the purpose of being loaded, where only they could be loaded. That after the inundation aforesaid, and previous to the loading of the flour on board of vessels at Christiana, Benjamin Stephens, the consignee of said flour, came from Philadelphia to Christiana, and after an examination of the flour gave the following directions to the defendants: "To be delivered at Lamberton or Bordenton as Latimer and Murdock may direct," having previously written the following letter addressed to Nevin and Allen, the agents of the defendants at Christiana, dated Philadelphia, November 25, 1813. "Your favour of yesterday is just received. It is my intention to forward the flour (or most of it) to New-York, but as yet I have not made a contract with any of the lines. You will please direct the captain who brings it to call on the agents here, with whom orders will be left where to send it, so that there will be no detention. It will be either to Lamberton or Bordenton. I hope you will send it on without loss of time, as every day is of much importance in the present critical state of affairs." That 388 barrels, part [**14]  of the said flour, were shipped and stowed in the usual and proper manner on board a good and sufficient vessel called the schooner Friendship, captain Gillan, to whom the following instruction was given, and who gave the following receipt, viz. To be delivered at Lamberton or Bordenton, as Latimer and Murdock may direct, &c. That the vessel called the Friendship proceeded without delay upon her said voyage, but on account of the continued lowness of the tides in Christiana creek, grounded at a short distance from the wharf at which she had been loaded. That she was got afloat again, and then proceeded some distance further down the creek on her said voyage, when for the same reason, and without any default on the part of the master and mariners, or others, she again grounded, by reason whereof, in the course of the night of the 6th of December, some of the planks of her bottom were strained, by which she leaked, and in consequence thereof filled with the water of the creek, without its being possible to prevent the same. That this unavoidable accident rendered it necessary that a part of the said flour, to wit, 110 whole and 9 half barrels should be immediately taken from on board [**15]  the Friendship, and put on board the sloop Sampson, a good and sufficient vessel, which at that time happened to be lying aground, although light, alongside of the Friendship. That there was no other mode of disposing of the said part, and that it was accordingly immediately put an board the Sampson, with instructions to carry the same to the only place to which the master would consent to carry it, viz. to Lamberton upon the Delaware, distant from Philadelphia about 30 miles. That all possible means were promptly used to discharge the water from the Friendship to get her off the bar on which she was lying, and to put her in a condition to resume her voyage with the residue of the flour. The water was accordingly discharged from her; that she was got off from the bar, and that after all proper measures were taken for preventing, as far as might be, any injurious effects to the flour which the water had reached, the schooner resumed her voyage aforesaid, with the said residue of the flour on board, and without delay or further accident arrived at Philadelphia on the 11th of December in the said year. That the said flour, viz. 343 barrels, on its being landed at Philadelphia, was afterwards [**16]  sold by the consignee thereof at public auction, and produced the sum of $ 1,574 and 14 cents, according to the account of sales thereof. That the flour taken from on board the Friendship, and removed to the Sampson, was without delay transported and carried to Lamberton, and there delivered and safely landed, of which the said Stephens had due and proper notice. That the 97 barrels of flour, so as aforesaid shipped on board the sloop Lettice, were carried and taken to Philadelphia; and that the captain, after making inquiry to ascertain whether instructions had been left with Latimer and Murdock for the purpose of directing him to proceed with the said flour to Lamberton, or Bordenton, and finding that none such had been given, he prosecuted his voyage to Lamberton, and there delivered the said flour to     Howell, in whose warehouse the same was stored, and took a receipt therefor, which he afterwards delivered to Latimer and Murdock, and who communicated the same to the said consignee. That the 5 barrels so as aforesaid shipped on board the schooner Kitty and Sally, were delivered at Lamberton, of which the consignee was notified in due time; and that the remaining 10 barrels [**17]  were entirely lost and swept away by the fresh and inundation that happened at Christiana, while the same was stored as aforesaid on the wharf at Christiana. They further gave in evidence, that no freight was ever paid to the defendants for any part of the flour thus transported as aforesaid. The defendants then prayed the court to direct the jury, that if the jury believe the evidence so as aforesaid offered by the defendants, the plaintiff is not in point of law entitled to their verdict for or on account of any part of the flour in his declaration mentioned.

The County Court, [Bland, A. J.] delivered the following opinion. This action is brought against the defendants as common carriers, to recover the value of 500 barrels of flour, which the plaintiff alleges they received and undertook to carry to Philadelphia. The plaintiff founds his right to recover on the following grounds, 1. That a part of the flour was materially damaged. 2. That another part was swept away by a fresh, and so wholly lost. 3. That a third parcel was sent to Lamberton beyond its place of destination, without any orders or authority from the plaintiff, or his agent, and thus also wholly lost; and 4.  [**18]  That there was an unreasonable and injurious delay in transporting the flour from Baltimore to the place of its destination.

The plaintiff has urged that the testimony of the defendants, if believed by the jury, does not amount in law to such an excuse, arising wholly from the act of God, or the enemies of the Republic, as will bar him from claiming compensation for the injury he has thus sustained. The defendants have offered in evidence a great variety of circumstances which they have insisted shew conclusively that all the delay, damage and loss, which has been sustained, was entirely owing to causes for which they are not responsible.

In carrying our attention along the route which this flour was to travel, we find that the cause of complaint commences with the land transportation; there it is alleged the commodity was unreasonably retarded in its progress, or that it was not accelerated with that rapidity and despatch that it ought to have been. In reply it is said, that the road over which it was to pass was at that time so excessively bad, and so very founderous, that it was utterly impossible to get along any faster with that number of waggons and force of teams,  [**19]  which was commensurate to all the ordinary calls of that species of transportation.

It is said in the books, that when a highway becomes so out of repair, that travellers cannot pass along it, they will be justified in leaving it, and going upon the adjoining fields. There are many respectable authorities which lay down the law in this manner, and none of them make any distinction as to the causes which may have produced the founderous condition of the road, but whatever may have occasioned such impracticability, the traveller shall not in such case be deemed a trespasser by going upon the adjoining fields. Founderous roads seem to be thus considered in some degree as the act of God, and therefore as forming an excuse for a traveller who from that cause trespasses upon a neighboring field. And upon the same principles, such kind of bad roads will in my opinion be an excuse for any delay occasioned thereby to a carrier, who is under a necessity of passing over them. I would here, however, observe, that my determination is founded upon the road's being in that condition properly called founderous; and that I wish to exclude from the grounds of my opinion those cases where the delay [**20]  has been occasioned by obstructions or nuisances, such as felled trees, ditches, fences, and the like, made by individuals who may be prosecuted for such acts, as well by the public as by the person who has sustained any special damage, because such cases appear to me to give rise to a different train of reasoning, and therefore cannot be considered as falling altogether within the same principles of law applicable to the case of a founderous highway. The impracticability of a road occasioned by the great and unusual number of passengers, is a kind of obstruction produced by the public for which the person injured has no remedy; it is, as to the individual so retarded, the immediate act of the nation, or as it were the act of God But where the carrier may recover damages for his delay, it would seem to be unreasonable that he should not answer over to the person who has suffered by such detention. I therefore think that the premises taken in the argument of this case from the case of Amies vs Stevens, 1 Strange 128, that where damage is occasioned by the act of God, operating upon, or as secondary to the act of man, which was the immediate causes of injury, is by much [**21]  too large. But it would perhaps be correct to say, that in all cases where the immediate cause of injury or delay is a public or national act, as the erection of a bridge over a navigable river, or the like, coupled with an act of God or physical impossibility, as a secondary or remote cause, the carrier shall be excused. The roads are usually better in summer than in winter, and consequently the transportation of commodities will move more rapidly at one season than at another. And I deem it sufficient for the defendants if they show that their force of teams and waggons was adequate to the ordinary purposes of transportation in the common state of the roads; for a carrier is not bound to find a new carriage for every journey, or to provide new and additional force of teams for every change in the state of the highway. In this case, therefore, so far as the delay was occasioned solely and exclusively by the founderous condition of the roads, the defendants are not chargeable for such delay.

But on the other hand, if the delay in this stage of the progress of the flour was not occasioned solely and exclusively by the bad road, but in part by the defendants having received and [**22]  undertaken to carry more commodities than they had the means of carrying, then they are chargeable; for if, by limiting themselves to a certain quantity of merchandise, they could have carried it in the usual and ordinary time, they were bound to do so. The law authorizes them to refuse to take more than they have the means or the power of transporting; but if they do overburden themselves, and in consequence thereof any delay or loss occurs, they are liable. I shall, therefore, as to this part of the case, give this direction to the jury--That if they shall believe that the delay in the land transportation was altogether owing to the founderous condition of the road, the defendants are excusable; but if they shall believe it was to be attributed to the defendants taking more merchandise than they had the power or the means to carry in the usual course of transportation, then they are inexcusable, and chargeable for the delay which has been so occasioned.

The next stage at which we are called on to attend to the situation of this flour, and to notice the conduct of these carriers, is at Christiana. This is by much the most important resting place of this eventful journey, and [**23]  where we shall have less difficulty in apprehending and explaining the extent of the responsibility, and the principles on which it rests, than in moving over the ten miles of founderous highway. The defendants having established a line of communication between Baltimore and Philadelphia, by packets and waggons, advertised to all the world that they were prepared and willing to undertake the transportation of merchandise in safety, by packets sailing from Baltimore to Elkton, where they had good and sufficient warehouses whence their waggons will convey it to Christiana, where also they have ample warehouses in which it may be safely stored until it is put on board of packets, and transported by water in safely to Philadelphia. In addition to this advertisement it further appears, that such was the usual and constant mode of transportation along this route, on which, and with reference to which, the contract in this case was made. But in this case the greater part of the flour, on its arrival at Christiana, was put upon an elevated place on the wharf, wholly uncovered, and in every respect unprotected from the weather. And while it lay there, a fresh arose in Christiana creek, by which [**24]  a great part of that, which was so exposed, was damaged, and some of it swept quite off. The fresh, say the defendants, occasioned this damage and loss and, the fresh was surely the act of God. But how came the flour to be thus carelessly disposed of and exposed to damage and perils from every quarter and of every sort? And why was it not stored? It was impossible, it is said, to procure any kind of warehouse room for this flour, because, owing to the very great and unusual press to have commodities transported along this line, in consequence of the coasting trade being cut off by the public enemy, every warehouse that could be had was stored full. But these carriers knew the state of public affairs; indeed this line of communication was established, it is said, in consequence of the state of the country, and became unusually crowded and profitable, chiefly from the same cause. These defendants knew, and were bound to know, the extent and capacity of their means of transportation; and the sufficient capacity of their warehouses at Elkton and Christiana was a most essential and important portion of their means of transportation in safety, which they knew, undertook for, and consequently [**25]  insured. They were not bound to take more than their warehouses could contain, any more than to receive on board their packets so much as might sink them; and having the right, it was their duty to refuse to receive and transport, under the general pledge and responsibility of carriers, any more commodities than they had the means of conveying in safety. But who gathered together, and persevered in gathering together, those enormous bulks of commodities at Elkton and Christiana? Who profited by it? Who induced the public and this plaintiff to believe that the goods they received to carry would be placed in warehouses? Why the defendants. The defendants, therefore, are chargeable for the damage and loss that has been thus sustained. The defendants cannot avail themselves of any thing like a half way excuse or apology--the loss must have been occasioned altogether by the act of God, and as such amounts to a complete and absolute excuse, or it is none at all. But here the defendants were in fault in so accumulating commodities on their own hands that they could not store this flour, and are therefore chargeable, and consequently cannot be allowed to give in evidence the manner in which [**26]  the loss was occasioned, in mitigation of damages. Upon this subject, therefore, I shall direct the jury, that the testimony, so far as it relates to this part of the case, is not to be regarded at all, because, if true, it does not amount to a legal excuse.

After the fresh in Christiana Creek was over, so much of the flour as was left, and in such condition as it was left, was again put in motion toward its place of destination--and the misfortunes which attended that part of this residue which was put on board the schooner Friendship, forms the next distinct branch of this case to which our attention has been particularly directed. It is alleged, that at the time this vessel commenced her voyage, the tide in Christiana Creek was unusually low, owing to the prevalence of the westerly and north westerly winds; that after she had gone a short distance she grounded, but was got off in safety, and then proceeded some distance further down the creek, when she again grounded, whereby some of the planks in her bottom were strained, so that she leaked and filled with water, in consequence of which a part of the flour was transhipped on board the sloop Sampon bound to Lamberton, where [**27]  it was taken; and that after some time the schooner Friendship was again got afloat, and proceeded to Philadelphia, where she delivered that which remained on board of her, to the consignee, in a damaged condition. For all which the defendants say they are not answerable, because the low tide was the act of God, and that act produced the damage and loss. In the case of Amies vs. Stevens, where in coming through a bridge, by a sudden gust of wind the Hoy was sunk, and the goods were spoiled, the carrier was held not to be answerable, "for, said Pratt, Ch. J. though the defendant ought not to have ventured to shoot the bridge, if the general bent of the weather had been tempestuous, yet this being only a sudden gust of wind had entirely varied the case." The sound sense of what is here said seems to me to amount to this, that where the general bent of the weather is tempestuous, the carrier is not only excusable, but he is commendable in delaying the further prosecution of his voyage until the stormy state of things shall pass away or subside; but that, if when the general bent of the weather is tempestuous, he does notwithstanding persist in prosecuting his voyage, as if in such a state [**28]  of things he had undertaken to shoot the bridge, and his vessel is sunk, he is answerable. The carrier is not bound to encounter any unusual or extraordinary perils occasioned by the act of God, but if he does so, he proceeds at his own risk. And again, a carrier takes upon himself the knowledge and the hazard of all the difficulties and perils of the route in which he proposes to go, except those proceeding immediately and solely from the act of God, or the enemies of the country; as where there was an anchor thrown into the river against which the vessel of the carrier was driven and sunk, he was held to be answerable, for it was his negligence in not inquiring more minutely about this new danger in that navigation, which he undertook to know. For as to all these and such circumstances, the carrier is, to all intents and purposes, an insurer. He contracts that the goods shall be carried in safety, and nothing will excuse his failing in the exact and punctual fulfilment of this contract, but his being prevented by the act of God, or the enemies of the country. The application of these principles, thus illustrated, to the predicament of the schooner Friendship, will, it appears to [**29]  me, leave little or no doubt about the extent of the liability of these carriers. If the prevalence of the westerly and north-west winds, had occasioned an uncommonly low tide in Christiana Creek, and thus, in an extraordinary manner, increased the perils of that navigation, these carriers were not bound at their own risk to encounter these new and extraordinary dangers; they would have been excusable in making a reasonable delay until these additional and temporary perils had passed away. But inasmuch as they did proceed, they prosecuted the voyage at their own risk; they knew, or they took upon themselves the knowledge of the changes in the navigation which had been thus occasioned, and they voluntarily proceeded; consequently they moved forward at their own risk. I shall therefore direct the jury, that the evidence offered as to this part of the case, if true, does not legally excuse the defendants from answering for the damage which the flour sustained on board the schooner Friendship, and is therefore to be wholly disregarded.

The attention of the court has been called to another parcel of this flour, which was put on board the sloop Sampson, and another vessel, and sent [**30]  to Lamberton, as is alleged, without any orders or authority from the plaintiff or his agents. As to which, if the jury shall believe, from the evidence, that this parcel of flour was sent to Lamberton beyond its original destination, without the orders or authority of the plaintiff, or his agents, the defendants are liable, otherwise not. But as some evidence has been offered relative to an authority derived from the agent of the plaintiff, the legal import of which the court is called upon to declare, I will therefore further direct the jury, that if they shall believe the testimony offered by the defendants, relative to the sending of the 97 barrels of flour to Lamberton or Bordenton, and that the agent of the defendants did call for instructions at Philadelphia, on Latimer and Murdock, and received none, then the defendants were justified in carrying the flour to Lamberton; otherwise not.

And finally, the court is requested to take a general view of this eventful and luckless voyage, and say whether there has not been, in point of law, an injurious and inexcusable delay in the transportation of this flour from Baltimore to Philadelphia. This is a matter which in this case [**31]  is so intermingled with all the transactions of the voyage, that the court must leave it in part to the jury to determine. My direction will therefore, here, as in the first question about delay, be hypothetical. If the jury shall believe that the delay was occasioned by the acts of God, that is such as head winds, the founderous condition of the roads, unusually low tides, or the like, the defendants are excusable; but if they shall believe that the delay was occasioned, or in so far as it was occasioned, by the defendants taking a greater quantity of commodities than they had the means of transporting, or by the unskillful navigation and grounding of the vessel, or by any other circumstance which cannot be deemed the immediate and distinct act of God, or the enemies of the country, then the defendants are chargeable for such delay to such amount as the jury shall deem reasonable.

I have taken a survey of this case in its several stages and by parts, because it did not appear to me to be susceptible of being properly taken in the aggregate from any point of view but the one respecting delay; for the flour, when it arrived at Christiana where its misfortunes commenced, was separated [**32]  into several parcels, each parcel was involved in a different predicament, and consequently the principles of law applicable to each was in some respects dissimilar.

The Court therefore refused to give the direction prayed for by the defendants; but did direct the jury, that if they believe that the delay in the land transportation was altogether owing to the founderous condition of the public roads, the defendants are excusable; but if they shall believe that it was to be attributed to the defendants taking more merchandize than they had the power or means to carry in the usual course of transportation, then the defendants are inexcusable, and chargeable for the delay which has been so occasioned.

And the court did further direct the jury, that the testimony offered on the part of the defendants, in relation to the fresh that happened at Christiana, was not to be regarded at all, because it did not legally excuse them from answering for any damage the flour had sustained by reason of the said fresh. And did also direct the jury, that the testimony offered by the defendants, in relation to the damage which the flour sustained on board the schooner Friendship, did not legally [**33]  excuse the defendants from answering for the damage thus sustained on board the said schooner, and ought therefore to be wholly disregarded.

And the court did further direct the jury, that if they believe from the evidence that 97 barrels of flour shipped on board the sloop Lettice, was sent to Lamberton, beyond its original destination, without the orders or authority of the plaintiff, or his agent, the defendants are liable, but not otherwise.

The court did moreover direct the jury, that if they shall believe that the delay in the whole line of transportation was occasioned by the acts of God, such as adverse winds, the founderous situation of the roads, unusually low tides, or the like, the defendants are excusable; but if they shall believe that the delay was occasioned, or in so far as it was occasioned, by the defendants taking a greater quantity of commodities than they had the means of transporting, or by the unskillful navigation of the vessels, or any other circumstances which cannot be deemed the immediate and distinct act of God, or the enemies of the republic, then the defendants are chargeable for such delay. The defendants excepted.

2. The defendants further [**34]  prayed the opinion of the court to the jury, that if they shall believe the testimony offered by the defendants relative to the sending of the 97 barrels of flour to Lamberton, or Bordenton, and that the agent of the defendants did call for instructions at Philadelphia, on Latimer and Murdock, and received none, then the defendants were justified in carrying the flour to Lamberton, otherwise not. This direction the court gave. The plaintiff excepted.

3. In addition to all the matters and things herein before stated, relative to an agreement made between the consignee and Nevin and Allen, two of the defendants, who were the agents of the defendants at Christiana, by which they were to send on the said flour to be delivered at Lamberton or Bordenton, as Latimer and Murdock, the agents at Philadelphia, might direct, the defendants offered this further evidence, that it was then agreed at Christiana that the defendants were to receive an additional compensation of ten cents per barrel. The defendants then prayed the opinion of the court, and their direction to the jury, that if they believed this last evidence so offered on the part of the defendants, the plaintiff is not entitled [**35]  to recover in the present form of declaring in this cause. Which opinion and direction the court refused to give; but directed the jury, that if they should believe the testimony offered by the defendants, relative to the sending of the flour to Lamberton or Bordenton, the plaintiff is nevertheless entitled to recover; because such new engagement to carry the flour to Lamberton or Bordenton, is no alteration or modification of the contract declared on, but an excuse for the non-delivery of the flour at Philadelphia, which it is proper should come from the defendants, and is not necessary to be set out in the plaintiffs' declaration. The defendants excepted.

4. The defendants then, in addition to the preceding evidence, and also in addition to the following letter, (previously offered in evidence, from Boyle, one of the defendants, to Hollingsworth and M'Kinsey, others of the defendants, dated Baltimore the 21st of October 1813, which was carried by the plaintiff to Elkton, with a knowledge of the contents,) viz. "This will be handed you by Capt. M'Laughlin of this place, who has shipped 500 barrels flour for Philadelphia on board Capt. Wood Abrams' vessel. I have no doubt you [**36]  will do what is in your power for him. Capt. Abrams went off without his invoice; Capt. M'Laughlin will give it you. No vessels will be loaded here unless those belonging to the line, until you are clear. You may also inform the waggoners, if it will be any encouragement, that no more flour, than what is already contracted for, will be forwarded under 90 to 100 cents. Would also recommend even our own vessels detained with their loads, unless you have back freight, until you get clear of what is at present on hand. The tobacco forwarded on board Capt. Mitchell is subject to your last regulation. The line pays no demurrage." They then offered to prove by a competent witness, who during the year 1813 was the clerk of the defendants at Baltimore, that Boyle, one of the defendants, was the agent at Baltimore of the said concern. That an office was kept by Boyle during the said year on Spear's wharf in the said city, for the reception of applications for the transportation of commodities by the said mercantile line, by the way of Elkton and Christiana. That the witness was in almost constant attendance with Boyle in the said office, during the hours of business; and that a short time before,  [**37]  at and after the 21st of October in the said year, it was the constant practice of Boyle, when such applications were made to him, while the witness was so with him in the said office, to inform the applicants of the press of business upon the concern, by reason of the great quantity of commodities which necessarily passed along the said line, and the difficulty at that season of the year of transporting the same with the usual expedition, and that all persons who sent commodities by the line must stand the risk of delay on those accounts, but that the concern would do all in their power to transport the commodities, which it might be thought proper to intrust to them, without delay, and with safety. That the plaintiff was present when the application was made for the transportation of the flour aforesaid; but that the witness did not particularly recollect that any such declaration was made to the plaintiff, or that he had any knowledge thereof. But the plaintiff objected to this testimony for any purpose whatever. And the court was of opinion, that it was not proper to go to the jury for any purpose, and therefore rejected it. The defendants excepted; and the verdict and judgment [**38]  being against them, they appealed to this court.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

Action against H and B as common carriers of goods, &c transported partly by land and partly by water, in packets and waggons, from Baltimore to Philadelphia, by the way of Elkton and Christiana, brought for negligence, &c. in the transportation of flour, &c. Much evidence was given of the badness of the roads, and destruction caused to the flour at Christiana, (where it was delivered, to be taken therefrom in packets,) by a considerable fresh occasioned by a heavy fall of rain which overflowed the place where it was deposited. On various questions submitted upon the evidence, the court directed the jury, 1 That if the delay in the land transportation was altogether owing to the founderous condition of the public roads, H and B were excusable; but if it was to be attributed to their taking more merchandize than they had the power or means to carry in the usual course of transportation, then they were inexcusable, and chargeable for the delay which had been so occasioned. 2. That the testimony offered by H and B in relation to the fresh that happened at Christiana, was not to be regarded at all, because it did not legally excuse them from answering for any damage the flour had sustained by reason of the fresh. 3. That the testimony by them offered in relation to the damage which the flour sustained on board the schooner F, did not legally excuse them from answering for the damage thus sustained on board the schooner, and ought therefore to be wholly disregarded. 4. That if 97 barrels of the flour, shipped on board the sloop L, was sent to Lamberton, beyond its original destination, without the orders or authority of the plaintiff or his agent, H and B were liable; but not otherwise. 5. That if the delay in the whole line of transportation was occasioned by the acts of God, such as adverse winds, the founderous situation of the roads unusually low tides or the like, H and B were excusable. But if the delay was occasioned, or in so far as it was occasioned, by H and B taking a greater quantity of commodities than they had the means of transporting, or by the unskillful navigation of the vessels, or any other circumstances which could not be deemed the immediate and distinct act of God, or the enemies of the state, then H and B were chargeable for such delay 6 That if the agent of H and B did call for instructions at Philadelphia, on the agents of the plaintiff, relative to the sending the 97 barrels of flour to Lamberton, and received none, then H and B were justified in carrying the flour to Lamberton. 7 That the plaintiff was nevertheless entitled to recover, because such new engagement to carry the flour to Lamberton was no alteration or modification of the contract declared on, but an excuse for the nondelivery of the flour at Philadelphia, which it was proper should come from H and B, and was not necessary to be set out in the plaintiffs declaration.

Certain declarations of H. made to persons applying to have goods transported, &c. of the press of business upon the concern, by reason of the great quantity of commodities which necessarily passed along the line, and the difficulty at that sea on of the year of transporting the same with usual expedition, and that all persons who sent commodities by the said line must stand the risk of delay on those accounts, but that the concern would do all in their power to transport the commodities without delay and with safety. There was no evidence that any such declaration was made to the plaintiff, (who was present when the application was made for the transportation of his flour,) or that he had any knowledge thereof--Held, that the evidence was inadmissible.  

COUNSEL:
Harper, for the Appellants, contended, 1. That the evidence does not support the action, because the contract alleged in the declaration, and the contract proved, are not the same contract, being between different parties. For which reason the general prayer of the defendants below, in the first bill of exceptions, ought to have been granted.

2. That the direction of the court in the first bill of exceptions, relative to the fresh at Christiana, is erroneous; because the fresh was the act of God, and so far as it operated, did excuse the defendants.

3. That the direction in the same bill of exceptions, relative to the damage sustained on board of the schooner Friendship, is erroneous, because the damage was caused by the lowness of the water, and the consequent grounding of the vessel, which was the act of God.

4. That the opinion contained in the third bill of exceptions is erroneous, because the agreement for 10 cents per barrel additional freight, operated as a new contract, which waived or modified, and in either case annulled the old one, and ought therefore to have been declared on.

5.  [**39]  That the evidence stated in the fourth bill of exceptions ought to have been left to the jury--1. Because it furnished proper ground for inferring the fact which the defendants wished to prove. 2. Because that fact was material and proper to be proved.

Martin and Winder, for the Appellee, referred to Amies vs. Stevens, 1 Stra. 128. 2 Com. on Cont. 322, 323. Lyon vs. Mells, 5 East, 428, and Colt vs. M'Mechen, 6 Johns. Rep. 160.  

JUDGES:
The cause was argued on the first, third, and fourth bills of exceptions, before CHASE, Ch. J. and BUCHANAN, EARLE, JOHNSON, MARTIN, and DORSEY, J.  

OPINION:

 [*306]  THE COURT concurred in the opinions of the County Court in all the bills of exceptions taken on the part of the defendants below.
JUDGMENT AFFIRMED.  

14 of 38 DOCUMENTS 

KENNER & HENDERSON VS. KENNEDY & COX.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

4 H. & J. 240; 1816 Md. LEXIS 15 

June, 1816, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court. Assumpsit on sundry bills of exchange drawn by the plaintiffs, (now appellants,) on the defendants, (the appellees,) and by them accepted, &c. The general issue was pleaded.

At the trial the plaintiffs proved, that the defendants, and a certain John Sherlock, all of whom resided in the city of Baltimore, in the year 1806, authorized and empowered the plaintiffs, who resided in the city of New Orleans, to purchase, on their account, a quantity of cotton, amounting to the sum of    , and to ship the same to Lees & Sherlock, of Liverpool. That the plaintiffs made the purchase, and drew bills on the defendants to reimburse them for part of the money expended by the plaintiffs in making the purchase; which bills were accepted by the defendants, and afterwards duly protested for nonpayment; which bills they offered in evidence. Of which protests due notice was given to the plaintiffs. The plaintiffs further offered evidence, that after the bills were protested, for nonpayment they, as the drawers of the bills, paid the amount thereof, with ten per cent damages, to the respective holders; and they further offered evidence, that according to the [**2]  usage and customs of merchants prevailing at the city of New Orleans, the holder of a protested bill of exchange drawn at New Orleans, on a person in any one of the United States, is entitled to receive from the drawer of the bill ten per cent. damages on the amount of the bill. And the plaintiffs stated to the court and jury, that the present suit was instituted solely to recover ten per cent. damages on the said bills of exchange, with interest and costs thereon, amounting together to $ 1,227 92. The defendants then proved, that the plaintiffs to October term 1808 instituted a suit in Baltimore county court against these defendants, and the said Sherlock, to recover the amount by the plaintiffs expended in making the said purchase of cottons, with interest thereon. That the defendants and Sherlock appeared to that suit, and after wards, at April term 1811, it was referred, by the consent of the parties, and by order of the court, to Robert Oliver and William Cole, who acted as arbitrators, and who awarded that there was due to the plaintiffs the sum of $ 5,643 51, on which award a judgment was rendered, which has been since satisfied and paid. And the defendants further proved, that [**3]  the arbitrators awarded to the plaintiffs the full amount of the money then due and expended by them, with interest, in making the purchase of the cotton And that the arbitrators, in forming their award, did not take into consideration the damages on the said protested bills. The defendants then moved the court to direct the jury, that if they believed these facts, the plaintiffs were not entitled to recover; and the Court, [Nicholson, Ch. J. and Bland A J.] gave the direction. The plaintiffs excepted; and the verdict and judgment being against them, they appealed to this court.  

DISPOSITION:
AFFIRMED.  

HEADNOTES:

K and H of New Orleans, having purchased a quantity of cotton for K and C, drew bills on them for the amount, which being protested for non payment. K and H were obliged to pay the amounts there of, with 10 p c damages, according to the usage and custom prevailing in New Orleans. They afterwards brought their action against K and C for the amount paid by them for the cotton, the suit was referred, and the arbitrators not taking into consideration the 10 p c damages, awarded the amount to be paid by K and C, to K and H, for which a judgment was rendered, which was afterwards satisfied. K and H afterwards brought an action against K and C, 10 recover the 10 p c damages--Held, that they were not entitled to recover 

COUNSEL:
Harper, for the Appellants, and by

W. Dorsey, for the Appellees.  

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

OPINION:

 [*241]  JUDGMENT AFFIRMED.  

15 of 38 DOCUMENTS 

BOEHME VS. AISQUITH, qui tam.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

4 H. & J. 207; 1816 Md. LEXIS 9 

June, 1816, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court. This was an action of debt brought on the 30th September 1809, for $ 450. The declaration contained two counts, each demanding $ 450, and setting out the promissory note hereafter mentioned, and a corrupt agreement between the defendant, (now appellant,) and the plaintiff, who sued, &c. (now appellee,) for a loan of $ 150 by the former to the latter, from the 2d of September 1805 to the 5th of October 1805, for which the former was then to have $ 90; and for securing the payment as well of the $ 150 as of the $ 90, the plaintiff endorsed the said note to the defendant. The defendant pleaded nil debet, and the act of limitations. To these pleas there were the general replications, and issues were joined. At the trial the plaintiff gave in evidence, that the defendant, at the request of Edward Aisquith, on the 2d day of September 1805, paid him the sum of $ 150, for the following promissory note:

"$ 240.     Baltimore, September 2d, 1805.

Thirty days after date I promise to pay Edward Aisquith, or order, two hundred and forty dollars, for value received.     John Neale." Endorsed in his own hand writing, Edward Aisquith. That after [**2]  the time appointed for the payment of the note, the same being unpaid, the defendant on the 30th of October in the same year, passed it to Thomas Baltzell, and received from him a quantity of goods, which at the usual selling price, amounted to the sum of $ 240, and agreed to pay the said sum of $ 240 to Baltzell, if he should not recover the amount of the note from Aisquith, or from Neale, the drawer. That a suit was commenced by Baltzell against Aisquith on the said note, and judgment was obtained against him for the amount of the sum of money mentioned in the note, with interest and costs; and that a fieri facias issued on the judgment, and was delivered to the sheriff of Baltimore county on the 22d of July 1808, returnable to October term in the same year. That the sheriff, on the receipt of the fieri facias, agreed to become answerable for the payment of the amount of the judgment, but did not actually pay the same until the month of November following; nor did he receive payment thereof from Aisquith until after he (the sheriff) had actually paid the same. The defendant then prayed the court to direct the jury, that the plaintiff was not entitled to recover, even although the [**3]  jury should believe the facts above stated. This direction the Court [Nicholson, Ch. J.] refused to give. The defendant excepted. Verdict, that the defendant owed the said sum of $ 450, and that he was guilty, &c. within one year, &c. Judgment entered for the said sum of $ 450, current money debt, and the sum of $ 900 current money damages, (being the damages laid in the declaration,) and costs; to be released on payment of $ 450, with interest, &c. From which judgment the defendant appealed to this court.  

DISPOSITION:
REVERSED.  

HEADNOTES:

A qui tam action was brought founded on the act of 1704, ch. 69, against usury, for $ 450 debt. The declaration contained two counts, each demanding $ 450 on a corrupt agreement for a loan of $ 150, from the 2d of September 1805 to the 5th of October 1805, for which the lender was to receive $ 90, and for securing the payment thereof, the borrower gave a promissory note, endorsed by him to the lender, for 240 dollars payable in 30 days. Verdict, on nil debt pleaded, that the defendant owed the said sum of 450 dollars-judgment entered for 450 dollars, debt, and 900 dolls, damages and costs; to be released on payment of 450 dollars, with interest, &c. On appeal judgment reversed.

Quere, Whether a qui tam action will lie where the usurious loan is for a less time than one whole year?

Whether the judgment to be entered on a verdict in such an action is embraced by the act of 1809, ch. 153, s 4, for the amendment of judicial proceedings? Quere.  

COUNSEL:
W. Dorsey, for the Appellant. 1. Admitting the proof to be that there was a usurious lending, yet it is not embraced by the act of 1704, ch. 69. The first section of that act contains a general prohibition, and declares what shall be usury. The second section declares that all bonds, &c. made upon or for usury shall be void; and the third section, (which is the section on which the plaintiff founds the demand for treble the sum loaned) declares "that all and every person and persons who shall upon any contract to be made, take," &c. "by means of any corrupt bargain, loan," &c. "for the forbearance or giving day of payment for one whole year, above the sum of money [**4]  aforesaid," (that is, £  6 for £  100,) "shall forfeit and lose, for every such offence, the treble value of the money so lent, one half to the Queen, and the other half to him that shall sue for the same, to be recovered by action of debt," &c. It is clear, that as the usurious interest claimed was for a shorter time than one whole year, the action could not lie. An indictment might lie, but not a penal action for treble the value. Penal statutes must be construed strictly. 1 Blk. Com. 88, (and Christian's notes.)

2. There was not sufficient proof of the usurious transaction. If the defendant had sued the plaintiff, he could not have recovered more than $ 150. Nor could Baltzell have recovered more than that sum. He stood in the same situation as the defendant did. There is nothing from which usury can be inferred. A man may purchase a note for less than the amount, and not be guilty of usury. But how much he might recover on it is another question.

3. The writ demands a debt of $ 450. The declaration has two counts, each for $ 450. Here then are demands for $ 900, and a recovery for only $ 450. Complon vs. Smith, Yelv. 5. The judgment is for $ 450 debt, and $ 900 damages [**5]  and costs, to be released on payment of $ 450, with interest, &c. This judgment is erroneous, and is not embraced by the act of 1809, ch. 153, s. 4, which says that where a verdict shall be given, the court shall enter such a judgment upon the verdict as will carry an interest, &c. until payment of the damages, assessed by the jury giving such verdict. This is not the kind of action embraced by that act, being a qui tam action in which the state is concerned, and is in the nature of a prosecution on the part of the state; and here no damages were assessed by the jury-they merely find that the defendant owed the debt demanded.  

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

OPINION:

 [*209]  JUDGMENT REVERSED.  

16 of 38 DOCUMENTS 

HARRIS vs. JAFFRAY, use of GWYNN.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

3 H. & J. 543; 1815 Md. LEXIS 24 

May, 1815, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court. This was an action of Trover, brought in the late General Court to October term 1796, for the conversion of three boxes, containing 1326 pieces of gold coin, commonly called half johannes, of the value of £  4000 current money. The damages laid in the declaration were £  5000 like money. The defendant, (now appellant,) at May term 1797, pleaded not guilty, upon which issue was joined. At May term 1798, the defendant filed the following plea, stated to be a plea puis darrein continuance. viz. "And the said D. Harris, by Z. Hollingworth his attorney, comes and defends the force and injury when, &c. and says that the said J. Jaffray, his action aforesaid further against him to have and maintain ought not, because he says, that the said Jaffray, by J. Winchester his attorney, heretofore, to wit, on," &c. setting forth another action brought by the present plaintiff against William Thompson, for trover and conversion of the same boxes of half johannes, as described in the declaration in this cause, and that a judgment by confession was rendered against Thompson at October term 1797, and that the said judgment was in full vigour and effect, and no wise [**2]  reversed or annulled; averring that the plaintiff in that action, and the plaintiff in this, was the same person, and that the goods, chattels and money, and the finding and conversion thereof, mentioned in the record and proceedings against Thompson, and the goods, &c. mentioned in the declaration in this action, are also the same. "And this the said D. Harris is ready to verify; wherefore he prays judgment if the said Jaffray, his action aforesaid against him to have and maintain ought, &c." To this plea there was a general demurrer, and joinder in demurrer. At March term 1807, (the proceedings having been transferred to Baltimore county court on the abolition of the general court,) the demurrer was adjudged good. The defendant then moved the court to amend the pleadings, by putting in a plea of the general issue, which he tendered to the court; but the court refused to sustain the motion, and on motion of the plaintiff ordered a venire for a jury to appear at the next term, to inquire what damages and costs the plaintiff had sustained, &c. At the next term, (October 1807,) "a jury was ballotted, empannelled and accepted, elected, sworn, and charged to inquire of the damages and [**3]  costs sustained by the plaintiff in the premises." The jury returned their inquisition, under their hands and seals, as follows: "This inquisition made, indented and taken, at bar, in Baltimore county court, in an action of trover, depending in the said court between James Jaffray, plaintiff, and David Harris, defendant, witnesseth, that we the jurors, whose names are hereto subscribed, and seals affixed, being duly empannelled, sworn, and charged to inquire of the damages and costs sustained by the said James Jaffray in the said action, by reason of the conversion of certain goods and chattels of the said James Jaffray, by the said David Harris, to his use, having heard the evidence given in the said action, and duly considered the same, do find the damages sustained by the said James Jaffray in the said action, to the sum of fourteen thousand five hundred and sixty dollars and forty cents current money, and the sum of forty dollars, costs of the said suit. In witness whereof we have hereto set our names and seals this," &c. Judgment was rendered upon this inquisition for $ 14,560 40 current money, damages, and $ 40 costs. From that judgment the defendant appealed to this court.

At [**4]  December term 1809 of this court, on motion of the appellant, it was ruled by the court, that William Gwynn, (for whose use this suit was entered,) on or before the second day of the next term of this court show cause, if any he hath, why he shall not produce to this court the assignment, if any he hath, under which he claims this suit for his use. The assignment above required was produced. At the same term, on motion of the appellee, it was ruled by the court, that the appellant, or his counsel, show cause why the appellee should not be permitted to release so much of the damages, assessed by the jury in this case, as exceeds the amount of damages laid in the declaration, and to amend the record by entering the judgment for the said amount of damages so laid in the declaration. This rule to show cause was argued at June term 1811, before POLK, BUCHANAN, and EARLE, J.

Key and Shaaff, against the rule, contended, 1. That it was error if a judgment was entered for more damages than laid in the declaration. 2. That when a defendant brings a writ of error or appeal, and the case is brought before a superior court, there can be no judgment, but simply a reversal if it is erroneous;  [**5]  but if a plaintiff brings a writ of error or appeal, then the court, if they reverse the judgment, may give such judgment as the inferior court ought to have given if there is no bill of exceptions in the case.

On the first point, they referred to Hoblins vs. Kembling, 1 Bulstr. 49. Way vs. Lister, 2 Stra. 1110. Pilford's case, 10 Coke, 115; and Chevely vs. Morris, 2 W. Blk. Rep. 1300.

On the second point, they cited 2 Bac. Ab. tit. Error, 503. Parker vs. Harris, 1 Salk. 262. Samuel vs. Judin, 6 East, 263; and Herle vs. Pender, 3 Bro. P. C. 505.

They also contended that the act of 1809, ch. 153, s. 2, did not embrace the case, and that the court could not permit the amendment to be made under that act.

Harper, in support of the rule, relied upon the act of 1809, ch. 153, s. 2, which is in the following words, viz. "That where any verdict shall be given in any action, suit or demand, in any court of record of this state, the judgment thereupon shall not be stayed or reversed for any defect of form or substance in any writ, original or judicial, or for any variance in such writs from the declaration or other proceedings, nor [**6]  for defects in any count in the declaration, so that there be one good count; and if the court of appeals should be of opinion, that there appears to be sufficient matter of substance in the record and proceedings on any appeal or writ of error, to enable them to proceed thereon, the same shall not be reversed or dismissed for want of form; and the court may, on motion, permit and direct any entry to be made, or act to be done, by either party, on the trial of any appeal, or during its pendency, which might or could have been done by such party after verdict, in the court from whose judgment such appeal was made, and which in law might have been necessary to give effect and validity to such judgment.

Curia ad. vult.

At December term 1811, the opinion of the court was delivered by

BUCHANAN, J. If a verdict is given for a larger sum than the damages laid in the declaration, the plaintiff may, before judgment, release the excess, and take a judgment for the amount of the damages laid; or if after judgment rendered upon the verdict, but during the same term, he tenders a remittitur of a parcel of the verdict, the court may strike out the judgment on the verdict, and enter [**7]  a judgment for the amount of the damages charged in the declaration. But if a judgment is entered upon the verdict, no release, or other act of the plaintiff, can give validity to that judgment, but on an appeal or writ of error, it must be reversed, unless the act of 1809, ch. 153, on which the rule in this case is founded, affords a remedy.

And the only question for the court is, Whether the law in that respect is altered by the act of assembly? The words of the act are, that the court of appeals "may, on motion, permit and direct any entry to be made, or act to be done, by either party, on the trial of any appeal, or during its pendency, which might or could have been done by such party after verdict, in the court from whose judgment such appeal was made, and which in law might have been necessary to give effect and validity to such judgment."

This clause of the law in no manner affects the proceedings in the county courts, and authorises no acts to be there done, or entries made, which could not have been done before; nor does it give any efficacy to any acts or entries there done or made by either party, to a suit, which the same acts or entries would not have had in [**8]  law before, but only authorises such entries to be made, or acts to be done, in the court of appeals, by either party to a suit, (and not by the court,) which might have been made or done by the same party in the court below, after verdict, without giving any efficacy to such acts or entries when made in the court of appeals, which the same acts or entries would not have had if made in the county court.

Independent of this act of assembly, if after a remittitur is entered, a judgment is rendered by the court, on a verdict for more than the damages in the declaration, or if the remittitur is entered after judgment, and that judgment is suffered to remain, in either case the judgment is erroneous, and not cured by the remittitur; a release of parcel of a verdict, not having the effect in law to give validity to a vicious judgment for the whole; and no entries or acts being authorised to be made in the county courts by either party to a suit, which might not before have been made after verdict; and no efficacy being given by the act of assembly to such acts or entries, when made in the court of appeals, which they would not have had, if made in the court below, it does appear to [**9]  the court, that a release entered in this court of parcel of a verdict, cannot give validity to a judgment rendered by a court below, for the whole of that verdict, being for a greater amount than the damages laid in the declaration; for that would be giving greater efficacy to a release entered in this court, than the same act would have if entered in the court below, a release entered below of a parcel of a verdict, not having the effect in law to give validity to a vicious judgment for the whole. Suppose, then, the record before this court contained a release, entered below by the plaintiff, of a parcel of the inquisition, there would then be no act to be done by the party, in virtue of the act of assembly, and the judgment being for more than the damages charged in the declaration, it would be erroneous; and could this court be called upon to affirm that judgment thus clothed in error? They surely could not; nor could this court amend or alter it in conformity with the release, but would be constrained to reverse it; which shows, that the sum for which a judgment is given, is a substantial part of it, and cannot be altered without altering the judgment. And the court think there [**10]  is nothing in the act of assembly giving authority to this court to make any alteration or disposition of a judgment on release entered here, which they could not make of the same judgment on a remittitur entered in a court below. The court are therefore of opinion, that even if a release is permitted to be entered in this case of a part of the inquisition, they cannot alter the amount of the judgment, which would in fact be to enter a judgment of their own, and then to affirm that judgment; so that there would be in the record no judgment of the court below; nor can this court reverse it, and give a judgment for the damages charged in the declaration, for it is well settled, that on an appeal by a defendant, the judgment cannot be reversed, and such a judgment entered for the plaintiff, as the court below ought to have given, and the act of assembly makes no alteration in the law in that respect. The defendant applies to be relieved from an erroneous judgment, and not to have a more perfect one entered against him; and he is driven to his appeal, by the act of the plaintiff in taking a judgment against him for more than by law he is entitled to. If in this case the judgment was for [**11]  the amount of the damages in the declaration, the inquisition being for more, and no release entered on the record, the plaintiff might enter one now. But however this court feel disposed to give effect and operation to the acts of the legislature, they think they cannot, by construction, strain the act in question to a meaning which the language of it will not bear, and thereby take to themselves an authority which the law, (whatever may have been the intention of the makers,) does not give.

The court therefore think that the rule ought to be discharged.

POLK, J. Dissented.

RULE DISCHARGED.

At the same term it was ruled by the court, on motion of the appellee, that the appellant show cause why the appellee should not be permitted to release so much of the damages found by the jury in this case, as exceeds the amount of damages laid in the declaration therein, and to enter such release on the records of this court. And also show cause why this court, after the release and entry aforesaid, should not amend the transcript of the record in this case by entering such judgment, on deciding the appeal, as the nature of the entry or amendment may require, or as the court [**12]  from which the appeal has been made would have rendered if such entry or amendment had been made before the rendition of the judgment in the said inferior court.

At December term 1813, this rule was argued before CHASE, Ch. J. and BUCHANAN, NICHOLSON, EARLE, and JOHNSON, J.

Pinkney, Key and Shaaff, against the rule. The motion and rule, they said, had been submitted by the appellant under the act of 1811, ch. 161, passed since this court discharged the former rule, as not being embraced by the act of 1809, ch. 153, s. 2. And which act of 1811, ch. 161, seemed to have been made expressly to take in this case. By the third section it is enacted, "that no judgment in any case shall be reversed in the court of appeals because the verdict was rendered and the judgment entered in the court below for a greater sum than the amount of damages laid in the declaration; but the plaintiff below, or his legal representative in the court of appeals, shall be permitted, on motion in that court, in every such case, to amend the transcript of the record of proceedings, by entering a release upon the record of the damages exceeding those laid in the declaration, and the court of appeals shall [**13]  proceed, upon such amended transcript, in the same manner, and give the same judgment in the case, as if the said release had been entered upon the record before judgment in the court below." And by the fourth section it is enacted, "that in all cases where the court of appeals shall have permitted or directed any entry to be made, or act to be done, on the trial of any appeal, or during its pendency, in virtue of any act of assembly of this state, which may require an alteration of the judgment given by the court from which such appeal was or shall be made, or which, if made in such inferior court, would have authorized or required a different judgment to have been given, the court of appeals may direct such judgment to be entered, on deciding such appeal, as the nature of the entry or amendment may require, or the court, from which the appeal has been or shall be made, would have rendered if such entry or amendment had been made before the rendition of the judgment in such inferior court."

They contended, that this act did not embrace the judgment before the court, it having been rendered on the inquisition of a jury, and not on a verdict; and to show the distinction between [**14]  an inquisition and a verdict, they referred to the statutes, 32 Hen. VIII, eh. 30, and 18 Eliz, ch. 14, cited in 1 Bac. Ab. 91, 92. Ireland's case, Cro. Eliz. 339. Courtier vs. Barret, Ibid 412. Cannon vs. Abbot, 1 Lev. 210. 5 Com. Dig. tit. Pleader, 157. The act of 1794, ch. 46; and 10 Coke, 126.

Harper and W. Dorsey, in support of the rule, referred to the acts of 1794, ch. 46, and 1785, ch. 80, s. 13. 3 Blk. Com. 397, 393. Jacob's L. D. tit. Inquest, 454. Ibib tit. Judgment, 552. Ibid tit. Ventre, &c. System of Plead. 514; and Co. Litt. 169, a. They also contended, that in the third section of the act of 1811, ch. 161, the expressions "that no judgment shall be reversed because the verdict was rendered and the judgment entered, &c. might be construed, or the judgment, &c.

CHASE, Ch. J. delivered the opinion of the court, making the rule absolute. He said the court considered that the acts of 1809, ch. 153, and 1811, ch. 161, authorised the court to permit the entry to be made.

BUCHANAN, J. dissented.

RULE MADE ABSOLUTE.

The appellee then entered his release of the sum of $ 2227 06 2/3, parcel of the sum found and returned for his damages by [**15]  the inquisition, being so much of the damages as exceeded the sum of £  5000 current money, the damages laid in the declaration; and prayed that the release be entered on the records of this court; that the transcript of the record be amended according to such release and entry; and that judgment be entered for the sum of $ 13,333 33 1/3, being the residue of the damages so found and returned with costs, &c.

Key and Shaaff, for the Appellant, then contended, that by the record it appeared that the jury were improperly charged to inquire of the damages sustained by the plaintiff, omitting and costs, as required by the act of 1794, ch. 46, and the inquiry was not stated to be on motion of the plaintiff. 2 Harr. Ent. 121, a.

a See Kierstead vs. Rogers & Garland, & Harr. & Johns. 282.

Harper and W. Dorsey, for the Appellee stated, that as there seemed to be some informality in the record, they-suggested diminution; and a writ of diminution being granted, the record was returned, as herein before stated.  

DISPOSITION:
JUDGMENT REVERSED.  

COUNSEL:
Pinkney, Key and Shaaff, for the Appellant, contended, that the court below erred in giving judgment against the defendant while there was an [**16]  outstanding plea, and issue undisposed of. That the last plea was not a plea puis darrein continuance, but was a second plea in bar. That the fact pleaded in the second plea did not happen after the last continuance, nor does that plea conclude as a plea puis darrein continuance; and not being such a plea, but simply a further plea under the statute of Ann, the first plea was not waived. To show that it was not in the form of a plea puis darrein continuance, they referred to 2 Harr. Ent. 550, where the former plea is relinquished, and the fact had happened after the last continuance, and the conclusion of the plea is different from the present. They contended, 1. That every plea of puis darrein continuance must be verified by affidavit. Martin vs. Wyvill, 1 Stra. 493. 2. That this plea was not pleaded as a plea puis darrein continuance, because in conclusion it strikes at the action itself, and not at its further continuance. 3. That in a plea of puis darrein continuance, the fact pleaded must have happened since the last continuance. They referred to 5 Bac. Ab. tit. Pleas & Pleadings, (Q) 477. 2 Lill. Pr. Reg. 326. That here the fact happened at October term 1797, and was pleaded [**17]  at May term 1798. That this was a plea under the statute of Ann, and could be added at any time without leave of the court. They cited 5 Com. Dig. tit. Pleader, 68, 223. Ryley vs. Parhurst, 1 Wils. 219. Waters vs. Bovell, Ibid 223.

Harper, for the Appellee, contended, that the statute of Ann does not give the defendant leave to plead a second or other plea, after he has selected his defence. That after issue was joined he could plead only puis darrein continuance. He cited 5 Bac. Ab. tit. Pleas, &c. 121. He also contended, that although the plea was not in all its form in the nature of a plea puis darrein continuance, yet it was in substance such a plea. It was once so considered by the defendant's counsel, and when the demurrer was ruled good, they applied for leave to plead the general issue. This they would not have applied for if they had considered there was an outstanding plea subsisting in the case. That it is a plea puis darrein continuance, he referred to Bull. N. P. 309. Barber vs. Palmer, 1 Salk. 178. Anonymous, Cro. Eliz. 49. 3 Blk. Com. 316. 1 Chitty's Plead. 436, and 2 Chitty's Plead. 676, 677.

By consent of the parties, who entered into terms.  

JUDGES:
At this term,  [**18]  (May term 1815,) the cause was argued before CHASE, Ch. J. and BUCHANAN, and MARTIN, J.  

OPINION:

 [*552]  JUDGMENT REVERSED.  

17 of 38 DOCUMENTS 

SMITH, et al. VS. GILMOR, et al. Garn. of WILLINK, et al.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

4 H. & J. 177; 1816 Md. LEXIS 5 

December Term, 1812, Argued 

June, 1816, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court. In this case an attachment issued on the 2d of February 1805, in the names of the appellants, against the lands, tenements, goods, chattels and credits, of Wilhem and Jan Willink, in virtue of a warrant from a justice of the peace of Baltimore county, directed to the clerk of the county court of that county, accompanied by an affidavit and account, pursuant to the directions of the act of assembly of 1795, ch. 56. At the same time the plaintiffs sued out a writ of capius as respondendum against the defendants, and filed a short note, stating that the suit was brought to recover the sum of $ 14,094 84 due to them from the defendants on account; and a copy of the short note was sent with the said writ, endorsed thereon "to be set up at the court house door by the sheriff." The attachment at the return day was returned by the sheriff, laid in the hands of Robert Gilmor and others, (the appellees,) and the writ of capias ad respondendum was returned Tarde. The garnishees being called appeared, and pleaded non assumpsit by W. and J. Willink, and for themselves nulla bona: to the last plea there was the general replication, and issues were joined,

1.  [**2]  At the trial in October 1808, the plaintiffs gave in evidence, that in the year 1801, they dispatched to Amsterdam in Holland, a ship called The Union, belonging to them and destined for a voyage from thence to Batavia in the East Indies; that R. Purviance, junior, was appointed by them supercargo of the said ship, and their agent for the whole voyage, with instructions to apply for assistance and advice in transacting the business to Messrs. Wilhem and Jan Willink of Amsterdam, (the original defendants in this cause,) who were the regular correspondents of the plaintiffs in that place. That the ship and supercargo arrived in Amsterdam some time previous to the 29th of July 1801, on which day Purviance, wishing to obtain information as to the practicability of placing the value of $ 30,000, money of the United States, in Batavia, by means of bills of exchange, and the terms on which those bills could then be obtained in Amsterdam, addressed to the Messrs Willink on the 29th of July 1801 the following letter: "I want to purchase, if possible, good bills on Batavia to the amount of $ 30,000. What are the lowest terms at which they may be had? I propose paying for them in the following [**3]  manner:--With the freight of The Union, after deducting her disbursements and other charges--With the proceeds of my brother's sugars--With a remittance (which I look for momentarily) either in a bill, or in sugars, or, should it not arrive in time, with remittances from Bremen. Would it be possible to purchase the bills of the India Company? If so, would they be payable in produce at the market price, on fixing the prices now? Will the bills be payable in specie, or paper? If the latter, what will be the proportionate value? It will be materially necessary that the bills be drawn at sight." That to this letter the Willinks on the same day returned this answer, written in the English language, viz. "Bills on Batavia might be purchased to the amount of f.75,000 or $ 30,000 at 48 per rix dollar of 2 1/2 a piece, and 10 or 12 per cent. discount, to be paid immediately, with an in case of need, on three, four or five persons, and at last on the governor of Batavia, to be paid there at sight, or at a few days, say 4 or 8, sight, to the order of Mr. R. Purviance Jr. and in case of his death, of Capt. Porter, or any one that Mr. P. should wish." That after receiving this answer Purviance [**4]  gave orders to the Willinks to purchase bills for him accordingly, for the use of the plaintiffs, and of the said voyage, which purchase the Willinks undertook to make as agents for the plaintiffs at the usual commission. That in pursuance of this order and undertaking the Willinks did purchase for the use of the plaintiffs at the rate and price of 48 stivers to the rix dollar, with a rebatement or discount of 12 per cent. good bills on Batavia to the amount of 30,000 rix dollars, payable at 4 days sight, which bills were written in the Dutch language, and an admitted true translation of one of them, (the others, one for 15,000 and the other for 10,000 rix dollars, being of the same tenor) is as follows, viz. "At Amsterdam the 18th of August 1801. For rix ds. 5000. At four days sight please to pay for this first bill of exchange, to the order of Mr. Rob Purviance, junior, and in case of decease, to Cap. A. Porter of the ship Union, the sum of five thousand rix dollars weighty sts. of forty-eight stivers. Value received from Messrs. Wilhem and Jan. Willink, and place to account as per advice from.

Your Ob. Serv.

(Signed)     J. Temminck & A. H. C. Staringh.

To the [**5]  hon'ble. Messrs. Neun, Wieze & Wiegman, executors of the estate of the late Mr. Wiegermen, Batavia. In case of need to apply to his excellency Mr. Van Overstraten." That the said bills were delivered to Purviance at Amsterdam on the 18th of August 1801, who at the time when they were presented to him stated to the Willinks that he did not understand the Dutch language, and therefore wished to have the bills explained to him in the English language. Whereupon they delivered to him, instead of a verbal explanation of the bills, the following paper purporting to be a translation of the substance of one of the bills, viz.     Amst. 18th August 1801.

"At 4 days sight please to pay for this first of exchange, to the order of Mr. Robert Purviance, Jr. and in case of death, to Capt. A. Porter of The Union, the sum of     heavy money, value of Messrs. W. & J. W. which please to place to account as advised of.

Your most Obed. Serv.

(Signed)     J. Femminick & A. H. C. Sharingh.

"On Imp. Neun, Wieze, Wiegman, executors of the estate of the late Wiegerman, esquire, deceased. In case of need to his excellency the general Van Overstraten."

And at the same time he [**6]  was informed by one of the partners of the said house, that two guilders and an half, each guilder being equal to 40 cents current money of the United States, was the par exchange between the rix dollar of Holland and the rix dollar of Batavia. That Purviance having read the translation, a receipt for the bills written in the English language was presented him by the Willinks, viz. "Received from Messrs. W. & J. Willink three sets of bills of exchange on Batavia, to the amount of thirty thousand rix dollars," which he signed and delivered to the Willinks, receiving from them at the same time the said bills, being under the impression that they would be paid to him in hard dollars of the value of 2 1/2 guilders Holland currency, being the par value of Spanish milled dollars. That the ship Union on the 19th of August 1801, proceeded on her voyage to Batavia with the said supercargo on board, and arrived there on the 7th of February 1802. Soon after which said bills were presented by Purviance for acceptance, who then learned for the first time that the bills being drawn in rix dollars were, according to their tenor, payable in the currency of Batavia, and would produce no more than $  [**7]  22,000 United States currency, and would only be paid at that rate. That finding this to be true, Purviance did accordingly receive payment of them at that rate and to that amount, and was thereby disappointed of $ 7,500 of the funds which he had expected in Batavia, and which were necessary for the purposes of completing the cargo of the ship, and in consequence thereof he invested only the said sum of $ 22,500 in a return cargo for the ship, which was not sufficient to fill her by the deficiency of $ 7,500, and dispatched her to Baltimore. After which he returned to Amsterdam, where a correspondence by letters took place between him and the Willinks, which letters the plaintiffs gave in evidence. They further gave in evidence that pending the negotiation for the bills, Purviance did clearly and explicitly explain to the Willinks that it was his desire and intention to contract for and purchase bills to the amount of 30,000 Spanish milled dollars; and that this sum was necessary for the purchase in Batavia of a return cargo for the ship; that Purviance did believe that the Willinks so understood him; that in answer to his inquiries as to the value of the rix dollar, as specified in [**8]  his letter to the Willinks of the 29th of July 1801, they assured him that it was 2 1/2 guilders, of a guilder Holland currency, to the rix dollar. They further offered in evidence that a florin and a guilder in Holland mean the same thing, and are a denomination of money consisting of 20 stivers; that the denomination of florin is not used in Batavia, and that the par of exchange between money of the United States, and money of Holland is 40 cents to the guilder, 2 1/2 of which make a rix dollar of Holland. They further read in evidence a letter to them from the Willinks, dated the 15th of September 1802 on the subject of the purchase of the said bills for their use, viz. "With respect to the bills we procured to Mr. Purviance, we endeavoured to convince him during his last stay here of the impropriety of his claim, on the supposed error in said bills of exchange on Batavia. When he asked for $ 30,000, of f. 2 1/2 each, we answered they could be purchased, but explained to him by mouth accurately that bills on Batavia were always drawn in rix dollars at 48 stivers, and obtained a discount more or less as could be agreed on. Whereupon he ordered 30,000 rix d. to be bought, as was duly [**9]  performed at a discount of 12 per cent. At the delivery of the bills drawn in Rx. D. at 48 st. each, he acknowledged their receipt and was fully satisfied with them. If therefore people in Batavia had refused to pay 30,000 Spanish milled dollars, and he had supposed the drawers committed an error, his duty had called him not to receive any money, but have the bills protested, to sue the drawers in Amsterdam on his return; but having received the money, and having parted with the bills, he gave up the whole of his right, if any, and has no title now to form any demand. However, to evince you gentlemen he has not sustained a loss as he seems to suppose, we shall give you as a proof the following statement. Mr. Purviance paid for the bills of Rx. D. 30,000     f.63,360

________________________________________________________________________________
Deducting 1/2 p. c. with brokerage	31 14	
And 10 p. c. insurance	6,336   	
		6,367 14	
	
		56,992 6	
 For which sum Mr. Purviance could have purchased at	
51 1/2 sti. as the price was for Spanish dollars	$ 22,130	
And he has received in Batavia		22,500	
	
Profit		370	
________________________________________________________________________________

And if we calculate 15 p. c. premium of insurance, as must have been paid at that time, as will appear [**10]  by the inclosed affidavit, it was a profit of 5 p. c. more. Could thus any man in his senses suppose Mr. Purviance would have obtained bills to be paid with 30,000 Spanish milled dollars which stood him only at 42 5/8, when dollars in specie were paid at 51 1/2 sti.--It is impossible to believe it." And also an account current transmitted to them by the Willinks relative to the said purchase viz. "1801, Aug. 20.

________________________________________________________________________________
To furnished bills on Batavia to Mr. Purviance.	Rx. D.	
30,000 at 48 st. deduct 12 p. c. discount	63,360   	
Our commission on the purchased bills f.63,360	
    at 1 p. c.	633 12	
Interest of our advance at 5 p. c.	208 12	
Postage of letters	4 4	
	
	64,206 8"	
________________________________________________________________________________

The plaintiffs also gave in evidence, that money is never taken up on loan at Batavia, by drawing bills on Holland, unless the funds taken out in the vessels trading there are sufficient to complete their return cargoes; and that the supercargoes, to enable them to obtain money in that mode, must have a special authority from their owners in America, and who must also enjoy a good credit; that no vessels ever sail from America under the expectation of being able to obtain funds for [**11]  the purpose of purchasing their return cargoes; and that it is very uncertain when money may be procured on bills at Batavia, and that money cannot at all times be procured on bills. They further offered in evidence, that although the word "Dollar" is not known in the Dutch language, nor is a coin in Holland; yet the word Dollar is used there among merchants, and is well known by them as meaning a Spanish milled dollar, or the dollar of the United States, and that the Willinks so understood it. The defendants then gave in evidence, that W. and J. Willink are natives of Holland; that the word Dollar is not a word known in the Dutch language, or in use among the merchants of Amsterdam; that there is no such coin or currency in Holland or Batavia, as a Dollar; that the rix dollar of Holland contains 50 stivers, equal to 2 1/2 guilders and florins, and is worth a dollar United States currency; that a rix dollar of Batavia contains 48 stivers only, and is worth no more than 75 cents currency of the United States, when paid in silver, but when paid in paper money of Batavia, is of considerably less value; that when the term rix dollar is used in Amsterdam in a bill on Batavia, it means a [**12]  rix dollar of Batavia currency, and is payable in the paper money of Batavia, unless it be specified in the bill to be "heavy stivers," in which case it is payable in silver, and is then worth 75 cents as aforesaid; that this is the usual custom and course of trade in Amsterdam relative to the drawing of bills on Batavia, where accounts are kept in rix dollars and stivers, 48 stivers to the rix dollar; that Spanish milled dollars in Amsterdam are, and in every part of the year 1801, and before and since, were an article of merchandize, and not a denomination of money; that as an article of merchandize, its value fluctuates in the market of Amsterdam, from 48 to 53 stivers, Holland currency, to the Spanish dollar; that on the 18th of August, 1801, the market price of a Spanish milled dollar in Amsterdam, was 51 1/2 stivers Holland currency, and the market price of bills on Batavia in rix dollars, payable in heavy stivers, was 48 stivers, Holland currency, to the rix dollar of Batavia, with a discount or abatement of 12 per cent. being the price at which the Willinks purchased the said bills; that the said bills were purchased on the most advantageous terms on which such bills could [**13]  then be obtained; that the sum paid therefor was 63,360 florins, Holland currency, of which Purviance was informed at the time when the bills were presented to him by the Willinks, and receive by him as aforesaid; that he at that time knew and was informed that the said bills were for 30,000 rix dollars on Batavia, and with that knowledge consented to receive, and did receive them as aforesaid; that in the purchase of the said bills, and in all the preparatory negotiations and arrangements concerning that purchase, the Willinks acted fairly and honestly as agents, laid out the money of the plaintiffs to the best advantage, and had no interest whatever in the transaction, except a commission of one per cent for the purchase on the sum invested; that in the previous correspondence between them and Purviance, relative to the price and amount of bills to be purchased on Batavia, they had no interest or intention to deceive him, or lead him into any error or mistake; and when they purchased and delivered to him the bills in question, supposed that they had fully executed the commission which he had given them. The defendants further offered in evidence, that the insurance of money from [**14]  Holland to Batavia was, in and about the year 1801, six per cent, which with charges, and the premium, would then have amounted to 7 1/2 p. c. on the sum transported. That the plaintiffs had not at that time any Spanish dollars in Holland, but must have purchased them; that they resolved to send them to Batavia, and must have paid for them at the rate of 51 1/2 stivers Holland currency to the dollar; and that money may be, and in February 1802 might have been obtained in Batavia for about 15 p. c. premium, by drawing bills on Amsterdam, which at that time was a customary mode of raising money there to complete return cargoes to America. The defendants further offered evidence to prove, that the information given by the Willinks to Purviance, relative to the value of the rix dollar of Batavia, and the par of exchange between Holland and Batavia, if given at all, was not given at the time of his receiving from them the bills, but at the time of writing their answer to his letter of the 29th of July 1801, and that no such information was given by them to him. The defendants further offered in evidence, that it is usual in voyages from the United States to Batavia, either direct or by [**15]  the way of Europe, for the supercargoes to be furnished with authority to draw bills in Batavia for the purpose of raising money there, to make up their return cargoes; which custom arises from the danger always existing, that the funds carried out may prove deficient. That the supercargoes of houses in the United States of established and known credit, and known in Batavia, may dispose there of their bills on their employers for the above purposes, and on the usual terms; and that Purviance, as the agent of the plaintiffs, might have disposed of bills on them at Batavia on the usual terms, for the purposes aforesaid, without any special authority for that purpose from them. The defendants then prayed the opinion to the court, and their direction to the jury, that the true meaning and construction of the letter from the Willinks to Purviance of the 29th of July 1801, is to inform him, that bills on Batavia to the amount of 75,000 florins, Holland currency, or $ 30,000 currency of the United States, might be purchased at the rate and price of 48 stivers Holland currency for each rix dollar of Batavia. But the Court, [Hollingsworth, A. J.] was of opinion, and so directed the jury,  [**16]  that the answers of the Willinks gave Purviance reason to believe, that an investment of 75,000 florins Holland currency, or $ 30,000 money of the United States, might be made in bills on Batavia, drawn according to the usual course of trade in rix dollars; that for each rix dollars, for which the bills should be drawn, the purchaser would have to pay 48 stivers Holland currency; and the value of the rix dollars, thus drawn for, was 2 1/2 florins Holland currency. The defendants excepted.

2. The defendants then gave in evidence the above opinion delivered by the court to the jury, and assented to by the plaintiffs. The defendants then prayed the opinion of the court, and their direction to the jury, that the order given by Purviance to the Willinks, to purchase bills of exchange for the use of the plaintiffs, and the undertaking of the Willinks to execute that order, did not bind them to procure those bills at any other price than what might be then the fair market price of such bills in Amsterdam. Which direction the court refused to give, being of opinion that the Willinks were obliged to purchase according to the terms they had stated to Purviance, or not to have purchased [**17]  at all, provided the jury believe that the Willinks were authorized by Purviance to purchase the bills for him on the terms aforesaid, and none other. The defendants excepted.

3. The defendants further prayed the direction of the court to the jury, that the said order and undertaking did not bind the Willinks to procure, for the use of the plaintiffs, bills which would produce in Batavia the sum or value of 30,000 Spanish dollars. On this prayer the Court [Hollingsworth and Jones A. J.] was divided in opinion, and therefore refused to grant it. To this refusal, both the parties, plaintiffs and defendants, excepted.

4. The defendants further prayed the court to direct the jury, that if the jury shall be of opinion, from the evidence, that Purviance, when he received the said bills from the Willinks, knew them to be bills on Batavia for 30,000 rix dollars, and knew the sum of money for which they had been purchased; and that the Willinks, in making that purchase, undertaking the execution of the order, and giving the information on which it was founded, acted fairly and with good faith, and procured the bills on as advantageous terms as they could then have been obtained;  [**18]  that then the acceptance of the bills by Purviance was an assent to, and affirmation of, the said purchase. On this prayer the court, two judges only being present, was again divided in opinion, and therefore refused it. The plaintiffs and defendants excepted.

5. The defendants further prayed the court to direct the jury, that if the jury shall be of opinion from the evidence, that when the Willinks received the said order, and undertook to execute it, they understood their letter of the 29th of July, 1801, to mean, that bills on Batavia to the amount of 75,000 florins, Holland currency, or $ 30,000 currency of the United States, at 2 1/2 florins to the dollar, might be purchased at the rate of 48 stivers Holland currency, for each rix dollar of Batavia, in heavy stivers, with a discount of 10 or 12 per cent. and did intend their said letter to be so understood at the time of writing it, then and in that case, they are not responsible for having purchased the bills at that price. This prayer the court also refused, being divided in opinion, two judges only being present. Both the plaintiffs and defendants excepted; and the verdict and judgment being for the defendants, the plaintiffs [**19]  appealed to this court.

A procedendo was awarded, and the cause remitted to the county court for a new trial.

6. A new trial was had in the county court at March term 1814, and a verdict given for the plaintiffs for $ 12,775 current money, damages. A motion was made by the defendants in arrest of judgment, because no declaration had been filed in the cause. The county court sustained the motion, and arrested judgment on the verdict; and the plaintiffs appealed to this court.  

DISPOSITION:
JUDGMENT REVERSED and judgment entered on the verdict of condemnation for $ 12,775 current money, damages, and $ 1975 93 current money, additional damages assessed by the court, and costs.  

HEADNOTES:

W. by letter, in answer to an inquiry made of him by P. on what terms bills on Batavia to the amount of $ 30,000, could be had at Amsterdam. &c. stated, that "bills on Batavia night be purchased to the amount of f.75,000, or $ 30,000, at 48 per rix dollar of 2 1-2 a piece, and 10 or 12 pr. et. discount, to be paid immediately"--Held, by Baltimore county court, that the construction of the answer to the letter was, that an investment of 75,000 florins, Holland currency, or $ 30,000, money of the U. S. might be made in bills on Batavia, drawn according to the usual course of trade, in rix dollars; that for each rix dollar, for which the bills should be drawn, the purchaser would have to pay 48 stivers, Holland currency; and the value of the rix dollar, thus drawn for, was 2 1 2 florins Holland currency.

That court also held, that if W was authorized by P, and undertook to purchase bills according to the terms stated in the above answer, and none other, he was obliged to purchase according to those terms or not to have purchased at all.

That court being divided in opinion, (only two judges present,) refused the defendants' prayer to direct the jury that W was not bound by his undertaking to procure bills which would produce in Batavia 30,000 Spanish dollars. On appeal--Held, that the prayer ought to have been rejected.

That court being divided in opinion, also refused the defendant's prayer to direct the jury, that if P, when he received the bills from W, knew them to be bills on Batavia for 30,000 rix dollars, and knew the sum of money for which they had been purchased; and that W. in making that purchase, undertaking of the order, and giving the information on which it was founded, acted fairly and with good faith, and procured the bills on as advantageous terms as they could then have been obtained, then the acceptance of the bills by P. was an assent to the purchase. On appeal--Held, that the direction asked for ought to have been given.

That court being divided in opinion, also refused the defendant's prayer to direct the jury, that if W, by his letter to P, understood it to mean, that bills on Batavia to the amount of 75,000 florins, Holland currency, or $ 30,000, currency of the U. S. at 2 1-2 florins to the dollar, might be purchased at the rate of 48 stivers, Holland currency, for each rix dollar of Holland, in heavy stivers, with a discount of 10 or 12 pr et. and intended his letter to be so understood at the time of writing it, then he is not responsible for having purchased the bills at that price. On appeal--Held, that the prayer ought to have been rejected.

The defendant having prayed the court to direct the jury on particular points, and the court being divided in opinion, only two judges being present, refused the prayer, to which refusal the plaintiff and defendant both excepted, according to the act of 1778, ch. 21. On appeal by the plaintiff--Held, that he had a right to the benefit of his exception.

A declaration need not be filed in a case against garnishees who appear to, and contest an attachment on warrant, if a short note is filed at the time of issuing the capius sued out with the attachment. 

COUNSEL:
Martin and Pinkney, (Attorney General U. S.) for the Appellants, and by

W. Dorsey and Harper, for the Appellees.

As a preliminary question it was urged by the appellees' counsel, that by the act of October 1778, ch. 21. s. 14, any person affected by a division of the court might except. That by the division of the court in this case the appellees alone were affected, as the prayers in the third, fourth and fifth bills of exceptions, which are the only exceptions now before the court, were made on the [**20]  part of the appellees, and the court being divided in opinion, were not granted; and by the refusal of the court to grant the prayers, the law was left to the jury, and this was acquiesced in by the plaintiffs below. That no advantage could be taken by the appellants of the refusal of the court to grant the prayers of the defendant. That if the plaintiffs below had made contrary prayers to the court, and the court being divided, refused to grant them, then they might have excepted, and by their appeal asked a revision by this court; but having neglected to do so, they were now wholly precluded.

The counsel for the appellants contended, that the plaintiffs below were affected by the refusal of the court to declare the law on the defendants' prayers. That before the act of 1778, ch, 21, either party might except, if the court refused to give an opinion on a prayer submitted to them. That there could be no reason why the plaintiffs should be compelled to call on the court for the converse directions to the jury, when the court had been divided in opinion, and had refused to give those asked for by the defendants, either for or against the plaintiffs. It would have been giving the [**21]  court unnecessary trouble, and a waste of its time, for the plaintiffs to have thus acted. Here the court below was composed of two judges, one of them for giving, and the other for refusing to give the directions prayed, and the plaintiffs excepted to the opinion of that judge who was for giving the directions as prayed by the defendants. That if the plaintiffs had applied for directions, the opposite of those asked for by the defendants, the court would have been still divided, and no directions would have been given, and the law would have remained unsettled; and it amounted precisely to the same thing as if left on the refusal to grant the defendants' prayers.

Martin and Winder, for the Appellants. They referred to the acts of 1715, ch. 40, s. 3, and 1795, ch. 56, s. 3. and Campbell vs. Morris, 3 Harr. & M. Hen. 535, in which no declaration was filed, and which was a case much contested.

Harper, for the Appellees.  

JUDGES:
The cause was argued at this term before BUCHANAN, EARLE, JOHNSON, and MARTIN, J.  

OPINIONBY:
BUCHANAN 

OPINION:

 [*185]  BUCHANAN, J. delivered the opinion of the court. The court are of opinion, that the applications of the defendants below, as stated in the  [**22]  first and last bills of exceptions, taken on the part of the plaintiffs below, (being the 3d and 5th taken at the trial of the cause) ought to have been rejected; that the direction asked for as stated in the second bill of exceptions taken by the plaintiffs below, (being the 4th in the record,) ought to have been given, and therefore reverse the judgment of the county court, dissenting from the opinions of that court on each of those bills of exceptions.
He stated that he differed in opinion with the other judges as to the preliminary question. He was of opinion that the case was not before the court under the bills of exceptions.
JUDGMENT REVERSED.

 [*186]  JUDGMENT REVERSED, and judgment entered on the verdict of condemnation for $ 12,775 current money, damages, and $ 1975 93 current money, additional damages assessed by the court, and costs.  

18 of 38 DOCUMENTS 

TILGHMAN, et al. VS. STEUART, et al.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

4 H. & J. 156; 1816 Md. LEXIS 4 

June, 1816, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from a decree of the orphans court of Anne-Arundel county, admitting to probate a paper purporting to be the last will of David Steuart, of Doden. The facts of the case appear to be, that D. Steuart, being possessed of a large real and personal estate, died on the 11th of October 1814, having never had but three sisters, all of whom died many years ago, and only one of whom left any children, viz. Susan, who intermarried with James Tilghman; and having never had but four brothers, viz. George Hume Steuart, Charles Steuart, William Steuart, and James Steuart. That Susan Tilghman, at the time of her death, left Frisby Tilghman and Susan Holliday, her only children and distributees. That George Hume Steuart died many years ago in Scotland, in the kingdom of Great Britain, leaving by marriage only one daughter, who also died many years ago, leaving by marriage two sons alive, as it is believed, at the death of David Steuart. That Charles Steuart died many years ago, leaving by marriage four sons alive at the death of David Steuart, viz. George C. Steuart, Benedict Steuart, Charles Steuart, and Edward H. Steuart, his only children and distributees. That William Steuart is still [**2]  living, never having been married, and that James Steuart is also living, having married many years ago, and has now, and has had for several years, two sons, George H. Steuart, and Richard S. Steuart, and four daughters, Margaret Steuart. Sophia Steuart, Henrietta Steuart, and Elizabeth Steuart. That after the death of David Steuart a search was made among his papers, in the presence of many of his relatives, for the purpose of finding a will, and after searching in vain in other places, the two persons making the search unlocked a trunk, where the deceased was known to keep his money and most valuable papers, and there found, at the bottom of a bundle of bank certificates of stock, a paper purporting to be his will and testament, neatly and carefully enveloped in a cover of white paper, whereon are written words corresponding with the concluding words of the will and testament inclosed, and which appeared to be a small part of the draft from which the said will and testament was copied. That the trunk was a place of great security, and contained a considerable sum of money, besides many valuable papers, among which was certificates of bank stock to a large amount, and none but papers [**3]  of importance. The paper thus found, purporting to be the will of the deceased, was lodged in the office of the register of wills for Anne-Arundel county, with the envelope of the said paper, on the 20th of October 1814. The paper and envelope are in the following words: "In the name of God, Amen. I David Steuart of Doden, in Anne Arundel county, and state of Maryland, being in perfect health, and of sound and disposing mind, do make and publish this my last will and testament, in manner and form following, viz. I give and bequeath unto my brother    , the dividends of stock of the Farmers Bank of Maryland, standing in my name, also the use of my four negroes Hannah, Jeanie, Paul and Charles, during his natural life, after which my will is that they should be free; I also leave him my books, plate and furniture, I may be entitled to at my mother's death. Item. I bequeath unto my brother    , the dividends of stock standing in my name in the Bank of Maryland and Bank of Baltimore. Item. I give to my nephew    , his heirs and assigns, my two tracts of land, the one called Venture, the other Edinbourgh, lying in the county of Washington, also the stock of the Frederick and Baltimore [**4]  Turnpike standing in my name, and to each of his children I leave two negro children, a boy and a girl, from four to ten years of age. Item. I give to my niece     the stock of the Potomack Bridge Company standing in my name. Item. I give to the sons of my brother     any claim I may have against their father's estate. Item. To the grand children of my brother    , I bequeath five thousand dollars each, of which notice will be given by my executors to their guardian. Item. I direct that my three farms of Greenock Park, Greenock Farm, and part of Obligation, lying in Anne Arundel county, together with the negroes, stock, tobacco and farm utensils, not otherwise devised, be sold, and the money applied to the purchase of bank stock, which together with my stock of the Bank of Maryland, Bank of Baltimore, Bank of Columbia, Bank of Washington, and the Farmers Bank of Maryland, I bequeath to the two sons of my brother    , they paying to each of their sisters the sum of five thousand dollars. I hereby appoint my two brothers, William and James, and my nephew Frisby Tilghman, executors of this my last will and testament. In testimony whereof I have hereunto set my hand, and affixed [**5]  my seal this     day of    , one thousand eight hundred and    .

(Seal.)

Signed, sealed, published and declared, by the testator, as and for his last will and testament, in the presence of us, who at his request and in his presence have subscribed our names as witnesses thereto.

Test,

XXX"

On the envelope is thus written to wit: "presence have subscribed our names as witnesses thereto.

Test"

Afterwards, on the 25th of October 1814, this paper was exhibited to the orphans court by James Steuart, one of the executors named in the said paper, George H. Steuart, son of the said James, and Richard S. Steuart, Margaret Steuart, Sophia Steuart, Henrietta Steuart, and Elizabeth Steuart, also children of the said James, appearing by him their guardian, claiming to be legatees and persons beneficially interested in the establishment of the said will, and required that the said will be admitted to probate, and that letters testamentary be thereupon granted to William Steuart, James Steuart, and Frisby Tilghman, the executors therein named: The court ordered that letters of collection be granted to William Steuart, James Steuart and Frisby Tilghman,  [**6]  to preserve the personal estate of the deceased, and continued the case under advisement. At the next term Frisby Tilghman, Susan Holliday, William Steuart, George C. Steuart, Benedict Steuart, Charles Steuart, and Edward H. Steuart, appeared and filed a caveat against the said paper being admitted to probate as the will of the said David Steuart, alleging that it is not his will, but that he died intestate, and praying that the court would not proceed to take the probate of the said paper as the will of the said David Steuart, and that letters of administration on his estate might be granted to the parties entitled, and that the parties interested might be summoned. A summons accordingly issued, and the parties were returned summoned, &c. And afterwards James Steuart, and others, the respondents, filed their answer to the caveat, alleging that David Steuart did not die intestate, as stated in the caveat, but that in his life-time he did make and execute his last will and testament in writing, as appears by the will and testament exhibited, the same being altogether in his own hand-writing, containing a full and entire disposition of his property, and being the only paper purporting [**7]  to be his last will and testament found at or since the time of his death, and that he died without having revoked, or any wise altered the said will and testament; therein bequeathing, (among other bequests,) to the respondent James Steuart, his brother, a considerable legacy, and to the other respondents, children of the said James, by words sufficiently descriptive, and designating them as legatees, other considerable legacies contained in that clause of the will which reads as follows: "Item. I direct that my three farms of Greenock Park, Greenock Farm, and part of Obligation, lying in Anne Arundel county, together with the negroes," &c. "be sold, and the money applied to the purchase of bank stock, which, together with," &c. "I bequeath to the two sons of my brother    , they paying to each of their sisters the sum of five thousand dollars." The answer then stated the appointment of executors, the manner in which the will was found, and the names of the several brothers, &c. of the deceased, at the time of his death. That the respondent James was the only brother of the deceased who had at the time of his death, and for many years previous thereto, both sons and daughters,  [**8]  as described and designated in the foregoing clause of his will before quoted and recited. That the will and testament exhibited is a good and sufficient testamentary paper, and was intended as such by the deceased. They therefore prayed that they might be permitted to take the testimony of witnesses for the purpose of establishing the foregoing facts, and in order to prove every other matter and thing necessary for the admission of the said will and testament to probate; and that the court would proceed to admit the said will and testament to probate as before prayed, and that letters testamentary thereon might be granted according to the directions of the will. The testimony of witnesses, and the admission of the parties, proved the manner in which the will was found, and the names of the several brothers, &c. of the deceased, as herein before stated. The paper exhibited as the will of the deceased, was proved to be entirely in the handwriting of the deceased. Col. John F. Mercer, in a part of his testimony, stated that he "recollects that some years ago, when in the habit of associating frequently with the late David Steuart, he has had conversation with the deceased, in which Mr.  [**9]  Steuart remarked to him that he was astonished how any man of common prudence or sense could die intestate; that from the time he had had any thing to dispose of, he had made it a point always to have a will by him, or words to that substance, or to that effect." This part of the testimony of Col. Mercer was objected to by the caveators, as inadmissible. It was also proved that Ann Steuart, the mother of the deceased, died on the 18th of August 1814, and that the deceased died on the 11th of October 1814. James M'Culloch, in his testimony, stated, "that he has long known the late David Steuart, and lived with him in habits of intimacy to the time of his death. That he had frequent conversations with him respecting wills and the testamentary dispositions of property. That he always and uniformly reprobated the neglect of persons to make their wills. That the deponent had a conversation with him shortly before his death, and after the death of Ann Steuart, his mother, which happened six weeks, or thereabouts, before his death. This conversation had no immediate relation to the testamentary dispositions of said David Steuart; but he then alluded to the liability of his being cut off,  [**10]  and spoke generally of the propriety and duty of every man being prepared with a will. That whenever the deponent had conversation with the said David Steuart on the subject of wills and testamentary dispositions, he always declared that he was prepared with a will, and kept a will by him, or words of that substance and to that effect." A letter was offered in evidence, written by Frisby Tilghman to David Steuart, dated the 14th of May 1814, and it was admitted, that the writer of that letter had purchased for David Steuart 250 shares of stock in the Conococheague Bank; that the said purchase was made a few days before the date of the letter, and stood in the name of the said Tilghman, and that this letter was the letter advising of the said purchase, which letter was found among the papers of David Steuart. It was also admitted that David Steuart had always been, until his death, a man of intelligence and information, and well acquainted with the manner and form of making wills; and that he was also well acquainted with the names of his brothers and sisters, and his nephews and nieces, and all his family connections. That James Steuart was the only brother of the deceased who had [**11]  both sons and daughters alive at the death of the deceased, and for many years before. That the words, as written on the envelope or paper inclosing the paper purporting to be the will of David Steuart, were written on the top of the inside page of said envelope, (being a half sheet of letter paper,) and that the said words nearly correspond with the concluding words of the paper purporting to be the will of David Steuart, written on the third page of an entire sheet of letter paper on which that will is written. That the paper purporting to be the will of David Steuart is altogether in the hand-writing of the said Steuart, as are also the words written on the inside of the envelope. That David Steuart generally enjoyed good health until his death, which was sudden. The Orphans Court, [Mackubin, Ch. J. Ridout and Maynadier, J.] decreed, that the caveat of the caveators be dismissed, and that the said paper be admitted to probate as the last will and testament of D. Steuart as to his personal estate. Decreed also, that the respondents recover against the caveators their costs, &c. From this decree the caveators appealed to this court.  

DISPOSITION:
DECREE REVERSED.  

HEADNOTES:

A paper purporting to be the last will and testament of D S wholly in his own hand writing, and having his name written at the beginning, devising and bequeathing both real and personal estate to his brothers, nephews and nieces, &c. leaving blanks for their names, and appointing by names his two brothers and a nephew his executors, leaving also the day, month and year, in blank, with a formal seal affixed, and having the form of an attestation used to wills devising real estate, with three crosses opposite to where witnesses are accustomed to sign their names, was found, after the death of D S, in an envelope of white paper, having written on it at the top, in the handwriting of D S, words corresponding with the concluding words of the will, and which appeared to be a part of the draft from which the will was copied, deposited at the bottom of a bundle of certificates of bank stock to a large amount, in a locked trunk, a place of great security, and containing a considerable sum of money, besides many valuable papers, and none but papers of importance. It was proved that D S had always been a man of intelligence and information, and well acquainted with the manner and form of making wills, and also acquainted with the names of his brothers and sisters, and of his nephews and nieces, and with all his family and connections. That in recent conversations he had said, that he was prepared with a will and had made it a point always to have a will by him. Bank stock had been purchased for him, by his directions, but had not been transferred to him, and it was not mentioned in the will, nor was there any general residuary clause therein by which that stock would pass. The orphans court decreed that this paper be admitted to probate as the will and testament of D S, as to his personal estate. On appeal, reversed.  

COUNSEL:
Martin, Shaaff and Tancy,  [**12]  for the Appellants. There are two grounds of objection to the paper purporting to be the will of David Steuart being admitted to probate--1. It appears from the face of the paper that he did not intend it in that state to be his will; and 2. Such a paper had been adjudged not to have validity as a will to pass personal property.

1. The paper has blanks, and no person is named as legatee. There is no signature--no date. It has the formality of a perfect will, and was designed as a will to pass real and personal property, and although found in a place of security, it is obviously an incomplete instrument--merely the draft of a will. He did not intend it as his will, or why omit to insert the names of the legatees? It is admitted he knew the names of all his relations, and that he understood the manner of devising real estate. The form of the attestation to the paper, with the three stars, shows that it was intended to have three witnesses. It is conclusive he did not mean to leave the paper as it stood for his will, for he well knew it would not pass his real estate; and it cannot be supposed that he intended that his real estate should descend differently from what the paper purports [**13]  it should. It must be a will at the time he wrote it, and no circumstance or after act can give it validity unless he expressly declared it to be his will. This he did not do. Something more, it is evident, was intended to complete it as a will to pass the real estate, which professed to be the intention of the deceased. Some of the blanks may be easily filled from the descriptions given, but the two first cannot be. He had two brothers living at the time of his death, and it is uncertain which brother was meant in either of the two first blanks. Part of the deceased's property was not disposed of; for in May 1814, stock was purchased for him in the Conococheague Bank, and it was not mentioned in the paper, nor is there any general residuary clause by which that stock will pass. If he had finally concluded and meant it as his will, why leave blanks? It is evident he was in doubt, as he well knew the names of all his connexions, and was a man of intelligence. It was a paper which he held under advisement. The envelope shows he had before probably a paper for his will which he had changed. Why not then change the one now produced? It shows he had, upon second thought, abandoned a former [**14]  draft, and prepared another for consideration.

2. To show that wills like the present have been judged insufficient to pass personal property, they cited and relied on Mathews vs. Warner, 4 Ves. 186, 197. (Griffith vs. Griffith, in notes.) Mathews vs. Warner, 5 Ves 23. Coles vs. Trecothick, 9 Ves. 249. 7 Bac. Ab tit. Wills & Testaments, (D 2) 328. 3 Swinb. 969, 971. Rob. on Frauds, 453; and Alexander Stewart's will decided on by this court on the Eastern Shore. That case appears to have been this--That after the death of A. Stewart, three papers were produced as his will. In the first the names of the devisees in the latter part of the paper were left blank, and supposed to have been written between 1798 and 1800, and not signed, but in the hand-writing of the deceased. The second was written after the spring of 1809, in which there was no bequest inconsistent with the first: and was written in the hand-writing of the deceased, and A. S. signed to it. The third was made when the deceased was not capable of making a will. There was proof that the deceased had said five years before, and two months before his death, that he always had a will by him. He informed one witness he had [**15]  a will by him, but that it was not complete, and he informed another witness, two months before his death, the same thing. The second paper was found in a trunk not locked, with shares of bank stock, in a closet locked, and the key kept by the deceased. The orphans court admitted the will to probate, and on appeal to this court the decree of the orphans court was reversed. As to the respect which is to be paid to the conversations of the testator, they cited Pemberton vs. Pemberton, 13 Ves. 301.

Pinkney, Harper and Steuart, for the Appellees. 1. The paper insisted on as a valid will to pass the personal property, is wholly in the hand writing of the deceased, with his name written at the top, and a formal seal affixed. 2. There is no other paper produced purporting to be his will. 3. The paper produced is full and conclusive in point of form as a will. 4. There is a good appointment of executors. 5. It substantially disposes of the whole property of the deceased. 6. It was found under circumstances of great security. 7. It is not condemned by any evidence in the record.

Although there are many blanks in it, yet it sufficiently designates the legatees, by which it can be known [**16]  who are meant. The deceased had only two brothers at the time of his death, and for many years before. The first blank meant William. The second meant James. The third meant Frisby Tilghman, who was the only nephew of the deceased, who had children. The fourth is ambiguous, but it can be ascertained. The fifth, the sons of his brother Charles were meant. The sixth meant the grand-children of his brother George, being the only brother who had grand-children. The seventh meant the two sons of his brother James, being the only nephews who had sisters. No other brother had sons and daughters. This bequest is clearly made out; and it is contended that it sufficiently designates who are meant as legatees, and if so it is as valid as if their names were inserted. Nothing remains but to see what the testator meant. We must attend to the will itself, and all the circumstances with which it is accompanied. They must be taken all together. It cannot be argued from authorities; we must look for principles. The intention of the testator is only to be regarded. This paper is what the law calls an olograph will, every word of which is in the hand-writing of the testator. It is not like a paper written [**17]  by another person. This is the first distinguishing feature. The second is his name in the introduction, also written by himself. It is considered as complying with the statute of frauds. Again, the will has been sealed by the testator--a formal seal affixed; not a seal made by a pen, but one carefully annexed, and it has been held by Lord Raymond and Lord Holt that sealing was equal to a signature under the statute of frauds. But this will is not under the statute, so that it is still stronger. There are three great essential qualities to make this a valid will. 1. The seal accompanied with the name, which never could be doubted under the statute of frauds. 2. It contains a good and explicit appointment of executors. 3. It contains a valid disposition of the testator's property. There is no ambiguity in the property devised. But there are blanks for the names of the legatees; yet it will not be denied that if the will was executed, according to the statute, with the blanks left, it would not be rejected because of the blanks. It is admitted that description may stand in the place of a name. If there is a mistake in the name, and the description sufficiently designates who is meant,  [**18]  it will control the name. Pow. on Dev. 405. Abbot vs. Massie, 3 Ves. 148. It has been admitted that the blanks would be of no consequence if the will had been formally executed. Is there any doubt as to the bequests under which the appellee's claim? The blank is as to the name of the brother, not as to the legatees. Nor can there be any doubt as to the other blanks. It is not contended that it is to be taken absolutely as a will of personal property; but prima facie to be considered as a testament. That doubts may be raised as to who are meant in the blanks. So it would be the case if it was formally executed. It would not then be permitted to be said that it was not a will. If imperfect upon the face of it, evidence could not supply the imperfection. But if simply doubtful, then parol evidence might be admitted to solve the doubt. What is wanting to make this prima facie the will of David Steuart? Did it want a name? Did it want a seal? Did it want a signature? A will of personal property requires neither name nor signature. It was wholly written by the testator. Was it deficient in the appointment of executors? Did it require publication? None was necessary--no acknowledgment was [**19]  required. The attesting clause was only required as to the real estate. There is nothing in it which does not make it a valid will as to the personal estate. It may be a will if wholly in blank--the blanks do not vitiate it as a will, if it comes clothed with the forms which the law requires. There can be no inconvenience in admitting such a will to probate. None but those who are shown to have been meant by the descriptions given, can take under the will. It was put in a place of security--the trunk locked, and the key kept by himself. In the trunk were his most valuable papers, and the will placed at the bottom under certificates of bank stock constituting the great mass of his wealth. That the trunk would be examined for his will there could be no doubt. His placing it under the certificates of stock at the bottom of the trunk, shows it was not intended simply as a plan or draft of a will; for if he had so considered it, would he not have put it where instant recourse might be had to it in order to perfect its execution on a sudden indisposition? Having completed it as a will so far as it went, he might have intended to do something further; but as he knew it was not formally executed,  [**20]  it would be a good will as to his personal property only. He knew three witnesses and a publication were necessary to pass the real estate; and he also knew that witnesses and publication were not required as to the personal estate. There can be no doubt then that it is prima facie the will of David Steuart, and it is incumbent on the appellees to show that it is not prima facie his will. It is under the authority of 3 Swinb. 971, entitled to be considered as a will, and not a plan for one. Here are no visible imperfections--no interlineations--no breaking off abruptly. The animus testandi was existing at the time it was written, and it was deposited in a place of safety. But it has been said that new property was acquired. How new property? One fund converted into another. This did not make it necessary that it should be included in his will. He left this to satisfy the general pecuniary legacies, and to pay his executors their commission. Every thing was done to make it a will of the personal property, and no doubt he did intend to make it operate as a will of his real property also. The court are to attribute the attesting clause to that circumstance. Matthews vs. Warner, 4 Ves.  [**21]  200, (note.) 1. It does not appear to be a mere plan, but to be a disposition of his property. 2. The evidence fully supplies all doubt. 3. If it is not regarded as a final but only a formal act intended, it is not material and does not invalidate it. The will purports to be a complete disposition, and the evidence is sufficient to make it complete. What are the decisions before the revolution; and how far do those since vary the doctrine? And if they do vary the doctrine how far are they entitled to be regarded? The law, as it existed before the revolution, is the law which now exists in this state. What then is the doctrine of the old cases? Swinb. 969, 971. Limbery vs. Mason, 2 Com. Rep. 451, 452, 454. Butler & Baker's case, 3 Coke, 31, b. Dep. Com. Guide, 78. The Visitors, &c. vs. Bruce, 1 Harr. & M'Hen. 509. But the authorities referred to by the appellants' counsel, when analyzed, do not impugn the doctrine contended for on the part of the appellees. All the cases go to show that the absence of the signature is of no consequence. Manby vs. Scott, 1 Siderf. 128. Stephens vs. Gerrard, Ibid 315. 1 Swinb. 80, (note); and Rob. on Wills, 198.

Curia adv. vult.  

JUDGES:
The cause was [**22]  argued at the last term before CHASE, Ch. J. and BUCHANAN, NICHOLSON, JOHNSON, and MARTIN, J.  

OPINIONBY:
MARTIN; JOHNSON; NICHOLSON; BUCHANAN; CHASE 

OPINION:

 [*165]  At this term the judges delivered their opinions seriatim.
MARTIN, J. This case is important not only from the amount of property involved in it, but from the principle that will be established by its decision, and unanimity in the opinion of the court would have been a source of great confidence and satisfaction to me. As that, however, unfortunately has not prevailed, I will concisely state some of the reasons upon which I have formed my judgment. This case originated from an application to the orphans court of Anne Arundel county, to receive for probate an instrument of writing purporting to be the last will and testament of David Steuart, deceased; a caveat was entered by some of the representatives of the deceased to this application, and the orphans court, after receiving the testimony produced by the parties, dismissed the caveat, and admitted the paper to probate, so far as it related to the personal estate.
In an investigation of this kind, the instrument of writing purporting to be a will, is the first [**23]  object that claims our attention. This instrument professes to dispose of both real and personal estate. It contains seven devises and legacies, leaving a blank in every instance for the name of the devisee or legatee. It has the form of attestation and a seal, but no date, signature or witnesses; and the question for the decision of the court is, whether David Steuart intended this paper, in its present imperfect and unfinished state, to operate as his will?
The requisites to constitute a will of real estate are clearly and fully established, and it is much to be regretted that the rules relative to a will of personal property are not equally explicit.
A will to convey lands must be perfect on the face of it, and no defect can be aided or supplied by parol evidence. 

 [*166]  It must not only be intended by the testator as his last will and testament, but must be executed with all the solemnities required by law. The same strictness is not demanded for a will of personal property; but to constitute a good will even for that purpose, the paper must either be complete on the face of it, or must be supported by parol evidence. It must appear from circumstances, or the declarations [**24]  of the deceased, that it was intended to operate as his will in its imperfect and unfinished state. If it be complete on the face of it, it requires no adventitious aid, it is full evidence in itself of the intention of the testator. But if incomplete and unfinished, and other acts are evidently required and intended to be done to give it full authenticity and completion, in my opinion, it cannot be received as a will even of personal property, unless evidence is produced to satisfy the court it was intended to operate as such, in its imperfect and unfinished state. This I conceive is not, as was suggested by the counsel, a novel doctrine, but has been recognized and acknowledged, from the time of Swinburne to the present day.
It must be admitted that this paper in itself is extremely incomplete as a will--indeed without the aid of parol evidence, it is incomprehensible. Besides the absence of date, witnesses and signature, it makes a disposition of real and personal property, but does not name any person to receive it--conscious of these defects, the testimony of witnesses has been resorted to, to show David Steuart intended it as his will in its present state. This testimony [**25]  then demands our attention. It appears from the record that David Steuart possessed a considerable real and personal estate, that he was a man of information, and knew what was necessary to constitute a good will to transmit his property.
Although the particular time when this paper was written does not appear, yet it is evident it must have been before the death of his mother, at least six weeks prior to his own death, and that during that period he was in good health until a very short time before his dissolution. These circumstances I consider all important in the case, because from them the incompletion of the will cannot be attributed to ignorance or sudden calamity.
As this paper contains dispositions of real as well as personal property, it is fair to conclude, David Steuart intended it should operate equally upon the one as the other, and not that it should be a good will as to the personal, and not the real estate. It is clear that he could not intend it to operate as to his real estate, in its present unfinished form, because from the paper itself it appears that he knew other acts must be done before it could be operative for that purpose--the form of attestation--the [**26]  three little marks for the witnesses, and the seal, leave no doubt in my mind upon this subject. Is it not equally clear that he intended, before this paper should be his will, other acts should be done to perfect the bequests of personal property?

 [*167]  How otherwise can you account for the blanks in every instance for the names of the legatees? It is stated that the intended legatees were all his immediate connections; of course he could be at no loss for their names. If then he had determined this paper should be the ultimate disposition of his property; if there was no suspended intention relative to it, why did he not insert those names? The blanks, in my opinion, afford strong evidence that he did not intend this paper, in its present form, to be his will. That he kept it by him as preparatory to a will. An inchoate paper that he could complete at any time, if he should ultimately determine to dispose of his property as therein mentioned. It cannot be denied that the description of a legatee would have the same effect in law as naming him, if the testator intended to substitute the description for the name. But the blanks in this case clearly show that David  [**27]   Steuart had no such intention; that he did not mean to rely on the description of the legatees, but before the will was completed to fill up the blanks with their names.
But it has been contended that this paper was verbally acknowledged by David Steuart as his will, and his conversations with Col. Mercer and Mr. M'Culloch, have been relied on to prove this position. Col. Mercer deposes "that some years ago, when in the habit of associating frequently with the late David Steuart, he has had conversations with the deceased, in which he remarked to him, "that he was astonished how any man of common prudence or sense could die intestate; that from the time he had any thing to dispose of, he had made it a point always to have a will by him, or words of that substance, or to that effect." Mr. M'Culloch states "that he had frequent conversations with the late David Steuart respecting wills and the testamentary dispositions of property; that Steuart always and uniformly reprobated the neglect of persons to make their wills; that shortly before the death of the said Steuart, he alluded to the liability of his being cut off, and spoke generally of [**28]  the propriety and duty of every man being prepared with a will; that he always declared he was prepared with a will, and kept a will by him, or words to that effect."
The question arising from this testimony is, whether in those conversations, David Steuart intended to apply his declarations specifically to this paper, because if that was not his intention, however prudent they may have been in theory they can have no operation in this cause. It may be observed that the evidence of Col. Mercer may be inimical to the will. If the declarations of David Steuart to him did not allude to this paper, they can have no effect upon it--If they did allude to it, as the conversations took place some time since, it clearly proves that it had been in the possession of David Steuart for the period, not merely of six weeks, but of several years, and remaining so long in his possession unfinished, and evidently on the face of it proving that he intended further acts to be done to give it full 

 [*168]  authenticity, it would create a fair presumption in law, that he had abandoned and did not intend to complete it.
But can it be believed that those general declarations [**29]  of David Steuart were intended by him to apply to this paper? The will he had in contemplation, as being such as every man ought to keep by him, was one that would effect the object for which it was intended--would dispose of all the property mentioned in it, and preserve harmony among his representatives. He knew a will to effect that purpose must be executed according to the solemnities of law, and that an unfinished paper, without attestation or signature, could not convey his real estate. If Mr. Steuart was under the impression that it was the duty of every man to be prepared with a will, can it be presumed he considered himself placed in that situation, by this imperfect paper, which he well knew would not transfer his real property? If, according to his declarations, it was wise and prudent to keep by him such a will as would make a full disposition of his property after his death, it would be the excess of folly, to rely upon a paper of this kind for that purpose, which at all events, leaves the real estate undisposed of, although named in it, and would inevitably involve his representatives in litigation and dispute. The character given of Mr. Steuart in this [**30]  record, forbids such an imputation. He could not therefore intend to apply them to this paper.
It is my opinion, that this paper being incomplete and unfinished on the face of it, evidently requiring other acts to be done to give it full authenticity, and no testimony being adduced sufficient to satisfy my mind that David Steuart intended it should be his will in its present form, that it cannot be received as a will even of the personal property--that the decision of the orphans court is erroneous and ought to be reversed.
JOHNSON, J. The case before the court arises on an appeal from the decision of the orphans court of Anne-Arundel county, under which, a paper, purporting to be the last will and testament of David Steuart, has been received, and recorded.
The paper in question is written entirely in the hand-writing of the deceased, who is admitted to have been an intelligent man, well acquainted with the manner in which wills of real and personal property are to be executed, and who, from the evidence in the cause, lived in good health for several weeks after the existence of the writing in question. There are blanks in every disposition he made of his property,  [**31]  or intended to have made, by the instrument of writing in question. In some instances, the facts stated in the record before the court, reduce to a certainty the object of the testator's bounty; in other instances it is difficult, if not impracticable, consistent with established legal principles, to designate the legatee; there is no date to the will--it was sealed, but not signed by the testator, and on 

 [*169]  its face it evidently purports an intention to have been executed, in the presence of subscribing witnesses, in conformity with the provisions of the statute of frauds, so as to have been effectual as well to pass the real, as the personal property described therein; and after the death of the writer, it was found carefully folded up, and lodged in a secure place amongst the deceased's valuable papers.
On the preceding facts, united with the parol declarations of the deceased, and the circumstance that the instrument in question was complete in the designation of the property intended to be given in every instance, except as to the names of the legatees, who in some instances are so described as to remove every particle of doubt, the question arises, Can such an instrument,  [**32]  consistent with the established principles of law, be received as the last will and testament of the deceased?
Against the validity of the will it has been contended, that notwithstanding the ancient decisions may have supported such instruments, the modern determinations establish a different doctrine, and where "the paper in question, on its face, carries evidence of an intention in the framer to perfect it by some further solemnity, which he has died without having superadded, having had afterwards sufficient time and health and recollection to complete it, such paper may be inferred not to have been intended to operate as it stood, and the omission to perfect it may ground a presumption of a change of mind in the deceased." Roberts on Frauds, 453.
If the position thus advanced was to be received in its full extent, the consequence would follow, that no will, designed to pass real and personal property, where an intention on its face was manifest that it was designed to have been executed in conformity with the statute, could be effectual to pass the personal property, although signed and sealed by the testator; for as it would be apparent on the face of the paper witnesses [**33]  were designed to be obtained, the not procuring them would justify, according to the position, the inference of a change of mind on the part of the deceased. To this extent the principle has not been urged in this cause.
But it is contended, that the circumstance of the intended legatees' names having been omitted, united with other facts disclosed in the case, and the time that elapsed after the paper was written, if they do not evince a change of mind, establish a more important point, that the testator never had made up his mind as to whom he would give his property; and that the paper in question never was designed as his will, but was only intended as an instrument, by which, at any moment, he might be able to carry into full effect a more matured mind. In other words, that the instrument in question was not written animo testandi.
The objection thus made is extremely plausible; and if nothing else existed in the cause than the paper in question, and the evidence that full time existed for its full 

 [*170]  completion, I should be inclined to think, notwithstanding the careful manner it was placed away, and the other circumstances connected with it, exclusive of Mr.  [**34]  Steuart's declarations, that it ought not to be received as a will.
In turning my attention to this case, and examining the principles on which the validity of wills depend, and the obligations they impose on those claiming under them, I have been led to believe cases of this description demand legislative interposition; that persons ought not to be permitted to claim the personal property without a proportionate release of their interest in the real. The only instance in which, connected with a will, that a court of equity cannot give relief, is a defectively executed will--and cases of that description frequently call for the interposition of the principle qui sentent commodum debent sentire et onus, as those instances to which that principle applies.
Although it seems, may I may add, is but just, amongst those, who in case of intestacy would inherit the property, that no claim under a will purporting to dispose of the real and personal property should be sustained, yet nothing is more certain, than that the law is otherwise; and as we find it, so are we bound to declare it, and not by establishing a different rule enact a new law. But instances of this kind could never [**35]  occur in court, or scarcely ever exist in fact, if the will purporting to convey both, could not pass the personal alone; for, perhaps since the statute of frauds, no such will has been written without disclosing on its face an intention to obtain the requisite formalities.
In forming an opinion in this case, there appears no necessity to introduce adjudications, that blanks left for the name of the legatee will not defeat the legacy, provided he is otherwise sufficiently described; nor is there any occasion to establish by authorities, that intended dispositions, being void for uncertainty, will not defeat those where that uncertainty doth not exist. The opposition to the paper in question rests on different grounds, to wit--He had never made up his mind to give to any person; that the paper in question was not written with an intention to give, but as a draft to enable him to give when his mind was fully made up.
As a will can be valid so far as regards personal property, although it purports a disposition of real, without that passing, even when, on the face of the will, an evident intention is disclosed to execute it with other formalities, [**36]  it follows, the testator, to pass the personal, need not possess, at the same time, an intention to part with the real; or if such intention exists, and that is defeated for the want of the requisite formalities, the personal dispositions are not defeated.
Having thus premised that a will may be valid as to the personal, when void as to the real; that they are not necessarily void in consequence of containing blanks; that bequests void in themselves for uncertainty will not affect those to which no such objection exists; and that the evincing, 

 [*171]  on the face of the will, an intention to have it executed in the presence of witnesses, will not defeat the personal bequests, I will add only one other observation before I proceed to consider the paper in question, purporting to be a will, now before the court.
If an intention disclosed on the face of the will to do some other act in regard to the personal bequests was to defeat such bequests, on the ground stated of a change of mind in the deceased, or on the foundation that the mind was never made up, then it would appear to me to follow, that no will designed to pass personal property [**37]  could be effectual where a blank existed; for I must conclude no one can or ever did believe, but that at the time the blanks are left, an intention existed to fill them up at some future period. But although all must believe the deceased did intend at the moment he left the blank, at some other time to fill it up, omitting to do so will not defeat the will, if the object of his bounty is otherwise sufficiently described.
The paper in question was found, as has been before stated, all in the hand-writing of the deceased, an intelligent man, well conversant with the manner of making wills, carefully folded up in a paper, evidently disclosing on its face also to have been the termination of a former instrument, purporting to have been a will, and deposited in a secure place--Yet, as there are such imperfections in the paper in question, if its validity rested here, I should say it ought to be rejected.
Had the paper in question, with all its imperfections on its face, been executed according to the statute of frauds, it seems to have been conceded, (as most undeniably would have been the case) it must have been established; for then the animus testandi, as conceded [**38]  on all sides, would have been disclosed; and yet the objects of his bounty would then have been as uncertain as at present; the formalities of the execution could not have made it more plain, or have removed any of the doubts that now exist, as to those who are to take.
But if the formal execution of the will, imperfect as it is, would have established it, then any other act done, or any evidence obtained acknowledging it, in addition to the circumstances connected with the paper in question, must produce the same result; for if the formal execution could have established it, then the instrument itself, in consequence of any, or all the blanks, in consequence of any or all the imperfections and uncertainties disclosed on its face, do not of themselves so completely establish the want of the animus testandi as to render it void, for if they did, proof of its due execution could not establish it as a will--And, as a will in the hand-writing of the testator is sufficient to pass personal property, and there being proof complete that the paper in question is of that description, it would appear to follow, that subscribing witnesses could give it no additional validity. But [**39]  if it required any, such 

 [*172]  proof exists in the case; for it is proved by respectable witnesses that the testator to one declared "he made it a point always to have a will by him," and to another, and that after the will in question was written, "that he was prepared with a will and kept a will by him," thereby evidently recognizing the paper, as fully and effectually as if he had produced it to the witness, and acknowledged it as such before him; unless the evidence discloses, or at least raises a doubt, whether he meant by his conversation with the last witness a paper different from the present. The declaration made to the first witness was some years previous to Mr. Steuart's decease; but it is more than likely, from the want of evidence that subscribing witnesses were ever called for by the deceased, united with the envelope having been executed similar to the will in question, that he never had executed a testament in conformity with the statute; and therefore, when he spoke of a will, he meant one calculated to pass personal property. From the evidence existing in this case, my judgment is satisfied, that the evidence by the first witness applies to such wills,  [**40]  and that the evidence of the other witness relates to the one in question, thereby recognizing it, with all its imperfections, as his last will and testament, and that the decision by the orphans court, directing it to be recorded, was correct.
NICHOLSON, J. Until I came into court this morning, I did not know that it was the intention to deliver opinions in this case seriatim, and I had not therefore reduced my opinion to writing. Finding, however, that all my brethren are prepared with written opinions. I will state briefly, that the objections to the paper in question are not that the blanks render it invalid as a will for the uncertainty, but that they manifest an indecision on the part of the testator--they show that at the time of writing, the voluntas testandi was not complete. No attempt has been made to assign a reason for leaving the blanks, and as it is admitted that David Steuart was acquainted with the names of the alleged objects of his bounty, it would seem necessarily to follow that if he had decided finally, the names would have been inserted where the blanks are now left.
It is true, that if the paper had been executed agreeably to the statute of [**41]  frauds, the blanks would not have defeated it as a will, although they might have rendered some of the devises inoperative for uncertainty--But it could nevertheless have been a will. The signing, sealing and attestation, would have evidenced the voluntas testandi, whimsical as that voluntas must appear, which has the complete power of expressing itself, yet leaves itself to be guessed at for years perhaps afterwards. But we are not called on to construe it now. It is our province to say whether it is such a paper as shows a fixed and settled determination of the deceased to make a final disposition of his property. The declarations of David Steuart do not aid it. It is impossible that he could have alluded to this 

 [*173]  paper when he said he had a will, &c. for it is admitted that he knew it would not pass his real estate, and knowing this, he could not, consistently with a regard to truth, refer to that which would not prevent the evils which he professed to be desirous of guarding against.
A will of real estate is placed by the statute of frauds on a very different footing from a will of personal estate. In fact they hardly belong to the same class of instruments.  [**42]  A will of real estate is a statutory conveyance; and in order to determine whether it be a will, we are to look only to the formality of execution. If the forms required by the statute have been complied with, we are precluded from saying it was not written animo testandi without regarding the nature of its provisions. But in a will of personal estate, having none of those formalities, we must look into the body of the instrument for substance more than for form. We must search for the animus testandi, and that must be collected from a view of the whole subject matter without regard to technical rules; for on such a subject there can be no rule applicable to all cases. In this case all the devises are to persons for whose names blanks are left; and one half of them are not even so described as to enable them to take under a will executed with all the solemnities required by the statute. It does not therefore bespeak to my mind such a fixed and settled determination on the part of the deceased as is all important to constitute a last will and testament, and I concur in the opinion that David Steuart died intestate.
BUCHANAN, J. This is an appeal from [**43]  a decree of the orphans court of Anne-Arundel county, on a caveat by the appellants against a paper, purporting to be the last will and testament of David Steuart, deceased, being admitted to probate.
By the decision of that court the caveat was dismissed, and the paper admitted to probate, as the last will and testament of David Steuart as to his personal estate. And the question presented to this court is, Whether that paper is the will of David Steuart? In the discussion of this cause, most of the adjudged cases, having any analogy to it, have been cited; but it is difficult to decide such questions upon the authority of adjudged cases, for it is in vain to look for cases exactly parallel; they are not to be found--each case depending upon its own particular circumstances. We must, therefore, look, not to the decisions made on the facts arising in reported cases, but for the principles governing those decisions. And it seems to have been long well settled, that to constitute a written paper a "last will and testament," it must appear that the deceased possessed animum testandi at the time it was written; and that he intended the paper as it stood to be his [**44]  will, without looking to any thing further to be done in order to perfect it.

 [*174]  And it is laid down, that if a man leaves an instrument purporting to be a will, which is unfinished, or carries evidence on the face of it of an intention in the framer to have perfected it by some further act, which he has died without doing, having had sufficient time and health to complete it, it shall not be received as his will, but he shall be presumed to have changed his mind.
The first thing to be considered then in this case is, What was the intention of David Steuart at the time he wrote the paper before us? And to come at a correct solution of that question, recourse must be had to an examination of the paper itself, which upon the face of it appears to be very imperfect.
No person is named as a legatee or devisee, but every devise is in blank as to the person, some of which cannot be filled up. The two first are of this description; each is a devise to his brother generally, without being named, with a blank left for the name; he had two brothers then living, and it is altogether uncertain which of them was meant in either of those devises. It is not signed, and is without [**45]  date, blanks being left for the month and day of the month, and it is broken off at the end of the words, "one thousand eight hundred and," leaving the particular year of the century to be added. These, perhaps, are not alone circumstances to set aside a paper, if the testator intended it to be his will in that form, without any thing further being done; but they are circumstances to weigh on the mind of a judge in looking for the intention of the party. It is said that a person may take as a legatee or devisee under a will, by description, without being named. But in every such case it would seem that the description must be such as the testator intended to rely upon, without any thing being superadded. In this case, something further seems to have been intended, and the blanks left, afford evidence of that intention. They show that David Steuart did not, at the time, intend to rely upon what was written, as a description of the persons to take under his will, but left the blanks to be filled up at another time with their respective names, or with some further and more perfect description; Or why were those blanks left? Certainly not of themselves to perform any useful office,  [**46]  since they, as blanks, give no description, nor afford any evidence of who were intended by the deceased. If he had been ignorant of his family, that circumstance might, in some sort, be used to account for his not describing by name those who were intended as the objects of his bounty. But it appears that he was well acquainted with every branch of his family--Why then, if his mind was made up, if he had finally concluded on the manner of disposing of his estate, did he leave blanks so important as those relating to the names of the legatees or devisees, and particularly when some of those blanks cannot be filled up with any degree of certainty by those best acquainted with every member of his family? The same may be said of the blanks in relation to the date--for though a will may be 

 [*175]  good without date, yet in this case, a date is in part set out, and blanks left for the residue; from which it is plain, that if he meant ever to perfect the paper produced, as his last will and testament, he intended to date it at the time it should be so perfected, and left the blanks for that purpose. The absence of the signature of the deceased, at the bottom of the paper, if it were [**47]  perfect in other respects, would of itself be of no importance, seeing that it is written by himself, with his name set out in the beginning, and a seal annexed. But it is of importance, taken in connection with the other imperfections apparent on the face of it; the particularity of which imperfections show them not to be mere omissions, or the effect of accident or ignorance, but the result of a deliberate intention, not to complete it at that time, with a view either of filling them up at some other time, when he should perfect that particular instrument as his will, or of keeping the paper itself only as a project of a will, or a draft either for consideration, or as a direction whereby he might readily make his will. There are other circumstances apparent on the face of the paper produced worthy of consideration, which have a strong tendency to show that it was not written animo testandi as it then stood, without any thing further being done. The clause of attestation is very formally drawn, to which is superadded the word "Test," and immediately following, three small crosses. Now this was certainly done for some purpose, and as the object could not have been to give effect [**48]  and efficacy to the paper as it then stood, it would seem as if they were used as memoranda for the government of the deceased, the word "Test" denoting, that when finally executed, it must be subscribed by witnesses, and the crosses directing the number of the witnesses, and the places where their names should be written. The frequent declarations ascribed to the deceased, that he was prepared with a will, and had one by him, cannot be applied to this paper, if he is to be understood as meaning that he had a finished and regularly executed will, but must have related to some other paper; for it is in proof that he was a man of intelligence and information, and well acquainted with the manner and form of making wills, and could not therefore have alluded to this unfinished and imperfect paper, which purports to be a will of both real and personal estate, but which he knew was not such an instrument as would pass real property. And there is nothing in the whole of the evidence to identify this paper as the one spoken of by him. But if he did allude to this paper, he could only have meant that he had a paper which he could at any time perfect as his will, or by which he could make one,  [**49]  and not that it was his will in the form it then bore; and that he generally kept a draft or project of a will by him, which he destroyed according to circumstances, may well be inferred, from the fact, that on the envelope were the concluding words of a clause of attestation in his hand-writing, corresponding with the concluding words of the 

 [*176]  clause of attestation, by the paper in question, with the word "Test" also subjoined, evidently the remains of a former draft of a will, to which he may as well be presumed to have alluded, when speaking of having a will by him, as to this paper; and which, together with the paper produced, and the proof that he was in the habit of reprobating the negligence of those who died without wills, very strongly shows that it was not his intention to die intestate as to any part of his property, and that he was solicitous to place his estate by will, in a situation to preclude any controversy amongst his relations. And yet, if he wrote this paper animo testandi, and intended it to be his will as it then stood, without doing any thing more to perfect it, he must have known, not only that he would die intestate as to the whole of his real [**50]  property, which it is evident from the face of the instrument itself, containing devises of his real estate, (which was very considerable,) he did not intend to do, and which no one can believe; but that he would also die intestate as to a large amount in the Conococheague Bank, mentioned in the letter of Frisby Tilghman, and concerning which no provision is made. And moreover, that the very state of things, which it appears he was solicitous, and which, from the particularity with which he noted the necessity for witnesses, with marks for their number, and the place to be occupied by their names, it is evident he was determined to prevent, would be produced by such an instrument. The paper itself is manifestly an unfinished instrument, intentionally left so by the framer, who died without perfecting it, after having had sufficient time and health to do so; for it appears from the evidence in the cause, that he must have lived in good health, at least six weeks after it was written. It is obvious, therefore, from the whole of the case, that David Steuart did not write this paper animo testandi; but that he either intended to perfect it by such further solemnities as [**51]  would render it a valid instrument to pass both his real and personal property, or that it was only written as a draft, or project of a will, for consideration, or to serve him in extremity, and in neither case can the circumstance of his having kept it in a place of security make any difference. And if he did not intend it to be his will as it then stood at the time he wrote it, no man is competent to tell when the voluntas testandi did exist in his mind as to that instrument. Applying then to this case the principles be fore laid down, which appear to run through all the authorities since the time of Swinburne, the conclusion seems to be irresistible, that the paper in question is not the will of David Steuart.
If I have a doubt on this subject, it is a doubt produced by the much regretted circumstance that two of my brethren, whose opinions are entitled to the first consideration, do not concur with me.
CHASE, Ch. J. also delivered his opinion, (which we have not been able to procure,) declaring it to be a good will as 

 [*177]  to the personal estate, and that the decree of the orphans court ought to be affirmed.
DECREE REVERSED.  

19 of 38 DOCUMENTS 

CHASE VS. TAYLOR.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

4 H. & J. 54; 1815 Md. LEXIS 12 

December, 1815, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court. This was an action of assumpsit for money had and received. The general issue was pleaded.

1. At the trial the plaintiff, (now appellee) read in evidence a bill of exchange drawn by him according to the custom of merchants, on the 27th of April 1807, in favour of the defendant, upon one William Lees, merchant at Liverpool, in England, for £  1000 sterling, payable sixty days after sight. And further offered evidence to prove, that the said bill of exchange having been received by the defendant, was by him transmitted to one Thomas Slater, his correspondent at London, for the purpose of being presented and paid; that the bill was accordingly presented to Lees, at Liverpool, for acceptance, on the 6th of June 1807; that Lees refused to accept it, and that it was noted for nonacceptance by the notary who presented it, but that no protest was then, or at any time afterwards, made for or on account of the said nonacceptance; that Lees, at the time of the said presentation, and from that time until the bill became due and payable, and afterwards, had in his hands effects of the plaintiff, over and above all other demands, more than sufficient to [**2]  pay and satisfy the bill; and that at the time of the drawing the bill, the plaintiff had shipped to Lees a valuable cargo belonging to the plaintiff, which before the bill was presented had arrived at Liverpool, and had been received by Lees, and was in his possession as the property of the plaintiff, when the bill was presented, and formed a part of the said effects, and was in itself much more than sufficient to pay and satisfy the bill; that Lees sold and disposed of the said cargo, for the use and as the property of the plaintiff, between the time of the presentation of the bill, and the 8th of August 1807, when it became due, and had the same, with more effects of the plaintiff, in his hands, when he, Lees, became a bankrupt on the said 8th of August, up to which time Lees was in good credit. That the said bill was not presented for payment, and that no demand of payment from Lees, who continued to reside at Liverpool, and no protest for nonpayment was made, until the 17th of November 1807, more than three months after the bill was at maturity. That no notice was given to the plaintiff by or on behalf of the payee of the bill of the said nonacceptance; and that the nonpayment [**3]  of the same was not in any manner made known to him until sometime in the year 1808. That on the 17th of August 1807, the plaintiff, being much embarrassed in his commercial concerns, but having very considerable property in ships and merchandize, and being pressed by creditors, duly made and executed to the persons therein named the following deeds for the ship Orozimbo, and her cargo, viz. A bill of sale of the ship Orozimbo, to George Salmon, William Winchester, Ralph Higginbotham, and James Cox--consideration $ 50,000, dated 17th of August 1807; and a deed of trust to the same persons--consideration $ 42,495 14, for the cargo, &c. of the ship Orozimbo, dated on the same day; and also a deed for the cargo of the Orozimbo to the defendant, and Joseph Sterett, on the 11th of September 1807, which should remain after satisfying the trusts mentioned in the last above mentioned deed, to pay the defendant $ 17,500, the amount of negotiable paper loaned by the defendant to the plaintiff; and to pay Joseph Sterett $ 5,000, &c. The plaintiff further gave in evidence, that on the 9th of September 1808, the ship Orozimbo arrived in the port of Baltimore, with a very valuable cargo on board;  [**4]  and that on the 20th of the same month, he was enabled, by the assistance of a friend, to satisfy the claims mentioned in the two deeds dated the 17th of August 1807, and received a reconveyance of the ship and cargo therein mentioned, which he gave in evidence. That about the same time the defendant pressed the plaintiff to settle an account, in which he claimed a large balance to be due to him, and in which the said bill of exchange was an article of charge, together with interest, damages and costs thereon. The account was as follows:

________________________________________________________________________________
Dr. Wm. Taylor, in ac. current with Thorndick Chase, Cr.	
1807.	
Sept. 19.	To amount of sales of 103 hhds.	
	   tobo. &c.	10,049 16	
1808.	
Sept. 13.	To bill of exchange returned from	
	   London under protest, and	
	   charges, &c.	5,683 31	
To, &c. &c. amounting in all to	18,950 18	
By credits, &c.	
By balance due,	12,283 56	
	
To balance due,	$ 12,283 56	
________________________________________________________________________________

That on the 27th of September 1808, the plaintiff settled this account with the defendant, and paid to him in part discharge of the balance appearing to be due, the sum of 6,327 97, and gave him his notes for the remainder, amounting [**5]  to to $ 5,950, which notes he gave in evidence. He also gave in evidence that the said notes were afterwards, in the months of May, August and September 1809, paid in full by plaintiff to the defendant, that at the time of making the said settlement, and payment and giving the said notes, on the 27th of September 1803, the plaintiff was wholly ignorant that the said bill of exchange had not been protested for nonacceptance, or that payment had not been demanded, or protest for nonpayment made, sooner than the 17th of November 1807; that he had not then received notice from the defendant of the time when the said bill was presented for acceptance, or that acceptance had been refused as the law required. That the defendant had declared to the plaintiff, before the said settlement and payment were made, and the said notes given on the 27th of September 1808, that he would not release his right under the deed of the 11th of September 1807, unless the plaintiff would settle the aforesaid account, and pay or secure the balance; that the said bill of exchange was not shown to the plaintiff at the time of the said settlement, but that the defendant promised to send it to him, and did send [**6]  it a few days afterwards; and that when the plaintiff had examined it, and the protest annexed to it, (which protest he offered in evidence dated the 17th of November 1807,) he complained to the defendant, that he had been induced to pay a bill for which it now appeared he was not liable, and observed, that the defendant ought to refund it; to which the defendant replied, that if the money could be recovered at all, he ought not to be sued for it. That when the said settlement and payment were made, and the said notes were given on the 27th of September 1808, the defendant required from the plaintiff two bills of sale to secure the payment of the said notes, one of which bills of sale conveyed to the defendant a moiety of the ship Fame, and the other conveyed to him the ship Roboreus, as expressed in the receipt or acknowledgment given by the defendant for the said bills of sale, which receipt the plaintiff gave in evidence. That upon the said bills of sale being executed and delivered to him, the defendant, and Joseph Sterett, released and reconveyed to the plaintiff the property mentioned in the deed from the plaintiff to them of the 11th of September 1807, which release the plaintiff [**7]  read in evidence. And that the defendant held the said bills of sale of the Fame and Roboreus until the aforesaid notes were fully paid. The plaintiff further offered evidence, that he was ignorant of the want of a protest for the nonacceptance of the aforesaid bill of exchange, when he paid and satisfied the said notes; and that while the said ships Fame and Roboreus were lying at the port of Baltimore, and the said bills of sale were in the possession of the defendant in full force, the plaintiff, for the purpose of transporting a certain quantity of coffee, part of the said cargo of the ship Orozimbo, to the continent of Europe, chartered the three following vessels; that is to say, the Leda, Richmond, and Dolphin, and did actually pay for the freight of said property the sum of $ 15,000, and upwards. The defendant then gave in evidence, that at the time when the settlement of the 27th of September 1808, was made, the plaintiff had been informed, and did know, that the said bill of exchange had been presented for acceptance to Lees, on the 6th of June 1807, and that the acceptance thereof had then been by him refused, and that the said bill had not been protested for nonacceptance [**8]  by or for the defendant; and also had been informed, and did know at the time of the said settlement, that the said bill was not protested for nonpayment until the 17th of November 1807; and that neither at the time of the said settlement, nor at any time before, did the plaintiff in any manner object to the payment of the said bill with damages and interest, but offered to secure the payment thereof, and that the only difference between him and the defendant, at the time of, and before the settlement, was about the nature of the security to be substituted by the plaintiff instead of the lien on the cargo of the Orozimbo, then held by the defendant; and that the said payment and settlement, and also the payment of the said notes, were voluntary on the part of the plaintiff, and made with a full knowledge of the undue delay in protesting the said bill for nonpayment, and of the nonprotest thereof for non acceptance. The defendant also gave in evidence, that on the 8th of August 1807, when the said bill became payable, Lees became bankrupt, and was duly declared bankrupt according to the laws of England; and that the plaintiff afterwards, and after he had made the said settlement and [**9]  payment of the 27th of September 1808, and before he had paid the said two notes then given, did present his account against the estate of the said bankrupt, to the assignees and commissioners of the said bankrupt, which account included the sum so paid to the defendant for principal, damages and interest, on the said bills, and was passed by the said commissioners, by whose order a dividend of 79 6d sterling in the pound on the said account was paid to the plaintiff, and received by him before the commencement of this action. And also gave in evidence, that the defendant did not at any time take, and never had or threatened to take, any actual possession either of the cargo of the Orozimbo, or of the said ships Fame or Roboreus, or either of them, and that all of them remained in the actual possession of the plaintiff. And also gave evidence to prove, that the plaintiff sustained no actual loss or damage from the failure of the defendant to cause the said bill to be protested for nonacceptance, or to give notice thereof to the plaintiff, or from the delay of the defendant to cause the said bill to be presented for payment in due time, and to be duly protested for nonpayment. He also [**10]  gave evidence to prove, that the cash payment made on the 27th of September 1808, was intended by the plaintiff and defendant to apply to the parts of the said account due for matters other than the said bill of exchange, and that the said two notes were intended to apply to the part of the said account arising from the said bill of exchange; which evidence arises wholly from the papers, facts and circumstances, stated above. The plaintiff further offered evidence, that he sustained loss by the omission of the defendant to cause the said bill to be protested for nonacceptance, and to give notice thereof to the plaintiff, and also from the delay of the defendant to cause the said bill to be presented for payment, and protested for nonpayment. The plaintiff further offered evidence, that the cash payment made on the 27th of September 1808, was not intended by the plaintiff and defendant, or either of them, to apply to the parts of the said account, other than the said bill of exchange, but that the said payment was intended to apply, in the first instance, to the said bill of exchange; which evidence also arises wholly from the facts and circumstances stated above. The plaintiff then [**11]  prayed the opinion of the court, and their direction to the jury, that if they believe the facts so given in evidence by the plaintiff, and that at the date of the settlement of the said account on the 27th of September 1808, he was ignorant that the said bill of exchange had not been regularly protested for nonacceptance, or that the same was not presented for payment at the regular time of the payment thereof, after the said presentation for acceptance, and protested for nonpayment; or if they believe that the plaintiff, at the settlement of the said account, had knowledge of the said facts, but that the defendant refused to release the power or control which he possessed over the cargo of the Orozimbo, unless the plaintiff settled the said account, and gave the promissory notes, and bills of sale for the ships Fame and Roboreus, to the defendant, then the plaintiff is entitled to recover in this case. This opinion the Court, [Nicholson, Ch. J. and Hollingsworth and Bland, A. J.] refused to give; but were of opinion, and so directed the jury, that if in their opinion the plaintiff, at the time of making the settlement of the 27th of September 1808, was ignorant of the fact that [**12]  the said bill had not been protested for nonacceptance, then the whole settlement was formed in mistake, and was not obligatory on the plaintiff; or if the jury should be of opinion, that the plaintiff was then apprized of the said fact, but made the said settlement, and gave the said notes, in order to induce the defendant to relinquish his said lien on the cargo of the Orozimbo, which the defendant otherwise refused to do, then the said settlement, payment and notes, were not voluntary, and do not bind the plaintiff. And if the jury should be of opinion, that the said settlement of the 27th of September 1808, was made by the plaintiff under ignorance of the said fact of nonprotest, or for the purpose of inducing the defendant to relinquish his said lien, which he otherwise refused to do, and that in the said settlement the cash payment then made was intended by the parties to apply to the said bill of exchange, then the plaintiff is entitled to recover back in this action so much of the said money as was paid on account of the said bill of exchange, except that proportion of the said bill which was received by him of Lees' estate at Liverpool. And if the jury should be of opinion,  [**13]  that in the said settlement, the notes given as aforesaid were intended by the parties to apply to the said bill of exchange, and that before the time of taking up the said notes, the plaintiff was still ignorant of the fact that the said bill had not been protested for nonacceptance, then the payment of the said notes was by mistake, and does not bind the plaintiff. And the court was also of opinion, that if the said notes were intended by the parties to apply to the said bill of exchange, and at the time of taking them up the plaintiff was apprized of the fact that the said bill had not been protested for nonacceptance, but that the plaintiff so took them up for the sole purpose of inducing the defendant to relinquish his lien on the ships Fame and Roboreus, then the payment of the said notes was not voluntary, and did not bind the plaintiff. The defendant excepted.

2. The defendant, to prove that the said bill of exchange had been duly protested for nonacceptance, offered in evidence the memorandum noted, viz. "6th June 1807, John Irvin, N. P." which he offered to prove was made by a notary public in Liverpool, at the foot of the bill; and also for the same purpose proved that [**14]  the said notary is now dead, and has been for some time past, and that it is the usual course, in relation to bills of exchange, to protest them for nonacceptance as soon as they have been noted for nonacceptance. The defendant then prayed the opinion of the court to the jury, that if the jury should be of opinion that the bill of exchange was presented for acceptance on the 6th of June, and was duly noted and protested for nonacceptance, and that the plaintiff was in due time informed of the said notation and protest, although the said protest was never shown to him. then that the omission to protest the bill for nonpayment, when according to its tenor it became due, did not exonerate the plaintiff from his legal responsibility on the bill. But the court were of opinion, and so directed the jury, that the defendant cannot give any evidence of the protest of the said bill for nonacceptance, without producing the protest itself, or a copy thereof from the books of the notary, or proving that the said books, and the original protest, are lost, and therefore refuse the direction prayed. The defendant excepted.

3. The defendant then prayed the opinion of the court, and their direction [**15]  to the jury, that if they believe that the plaintiff, after he was informed of the irregularity in the protest of this bill of exchange for nonpayment, and of the nonprotest thereof for nonacceptance, and had taken up the said bill, made a claim against the estate of Lees, which claim included the said bill of exchange, and the money paid thereon by the plaintiff to the defendant as aforesaid, and that the said claim was allowed by the commissioners of Lees' estate, and a dividend thereon allowed, and paid and received by the plaintiff, then the plaintiff was not entitled to recover in this action. This opinion the court refused to give. The defendant excepted.

4. The defendant then gave in evidence, that on the 10th of June 1807, four days after the noting of the said bill of exchange for nonacceptance, Lees wrote and transmitted to the plaintiff a letter, informing him that the acceptance of the said bill of exchange had been refused, and that the ultimate payment thereof was doubtful, which letter was received by the plaintiff in the usual time, and long before the said settlement of the 27th of September 1808, and he gave the letter in evidence. And he then prayed the opinion [**16]  of the court, and their direction to the jury, that if they believed from the evidence that the said letter was written and received as aforesaid, and that the said bill of exchange was noted as aforesaid for nonacceptance, then the want of a protest thereof for nonacceptance did not in law absolve the plaintiff from his liability on the said bill of exchange, and therefore could not operate to enable him to recover in this action. This direction the court refused to give, being of opinion, that the memorandum on the said bill of exchange was no evidence of the same having been noted for protest; and that to receive other evidence of a protest for nonacceptance, than the protest itself, or a copy of it, except where the original and the record have been lost or destroyed, would be to step over all those rules of the law of evidence by which the commercial world is governed. The defendant excepted.

5. The defendant then prayed the opinion of the court, and their direction to the jury, that if in their opinion the plaintiff, at the time of settling the said account, making the said payment in cash and notes on the 27th of September 1808, or of taking up the said notes, had received [**17]  no notice of any protest of the said bill of exchange for nonacceptance, and that no such protest had been made at the time of presenting the said bill for acceptance or afterwards, and that the plaintiff, at the time of taking up the said bill of exchange on the 27th of September 1808, by paying the amount in cash and notes as aforesaid, or of taking up those notes as aforesaid, was ignorant of the omission to protest the said bill for nonacceptance, then such ignorance does not affect the right of the defendant to retain the money for which this action is brought. But the court also refused to give this opinion and direction. The defendant excepted; and the verdict and judgment being against him, he appealed to this court.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

W T drew a foreign bill of exchange dated the 27th of April 1807, on W L, in favour of T C, payable at 60 days after sight; which bill was on the 6th of June 1807 presented for acceptance and refused, and so noted by a notary public, but no protest was ever made for non acceptance. W L at that time and afterwards, and on the 8th of August 1807, when the bill became due, had funds in his hands belonging to W T more than sufficient to pay the bill, and he was in good credit up to the 8th of August 1807, when he became a bankrupt. The bill was presented for payment, and no demand of payment from W L, and no protest for non payment were made until the 17th of November 1807. No notice was given to W T of the non-acceptance, and the non payment was not made known to him until some time in 1808. On the 17th of August 1807, W T, being much embarrassed in his commercial concerns, but having very considerable property in ships, &c executed certain bills of sale in trust, &c. and on the 11th of September 1807, he executed one on the ship O, to T C, in trust, &c. On the 20th of September 1808 he satisfied the first mentioned bills of sale, and received a reconveyance. T C about that time pressed W T to settle an account, he claiming a large balance to be due to him, in which the bill of exchange was an article of charge, together with interest, damages and costs thereon On the 27th of September 1808, the said account was settled, and W T paid to T C in cash, and notes, which were afterwards paid, the balance due on the said account. T C had declared to W T before the said settlement and payments, that he would not release his right under the deed of the 11th of September 1807, unless W T would settle the said account, and pay or secure the balance. In an action by W T against T C for money had and received--Held, that if W T, at the time of making the settlement of the 27th of September 1808, was ignorant of the fact that the bill of exchange had not been protested for nonacceptance, then the whole settlement was formed in mistake, and was not obligatory on W T. or if W T was then apprized of the said fact, but made the settlement, and gave the notes, in order to induce T C to relinquish his said lien on the ship O, which T C otherwise refused to do, then the settlement, payment and notes were not voluntary, and did not bind W T That if the settlement was made by W T under an ignorance of the fact of nonprotest of the bill, or for the purpose of inducing T C to relinquish his said lien, which otherwise he refused to do, and that in the settlement the cash payment then made was intended by the parties to apply to the said bill, then W T was entitled to recover back so much of the said money as was paid on account of the said bill, except that proportion of the bill which was receive by him of W L's estate. And if in the settlement, the notes given were intended by the parties to apply to the said bill, and that before the time of paying the notes, W T was still ignorant of the fact that the bill had not been protested for acceptance, then the payment of the notes was by mistake, and did not bind W T. And if the notes were intended by the parties to apply to the said bill, and at the time of taking them up W T was apprised of the fact that the bill had not been protested for non acceptance, but that he so took them up for the sole purpose of inducing T C to relinquish his lien on the ship, then the payment of the notes was not voluntary, and did not bind W T.

If W T, after he was informed of the irregularity in the protest of the bill of exchange for non payment, and of the non protest for non acceptance, and had taken up the bill, made a claim against the estate of W L therefor, and it was allowed by the commissioners of W L's estate, and a dividend allowed, and received by W T, it will not prevent W T from recovering from T C the balance paid by him on account of the bill, deducting such dividend.

No evidence can be given of the protest of a foreign bill of exchange for non acceptance, without producing the pretest itself, or a copy from the books of the notary, or proving that the books and the original protest are lost.  

COUNSEL:
Harper, for the Appellant.

Pinkney and W. Dorsey, for the Appellee. They referred to Astley vs Reynolds, 2 Stra. 915, 916.  

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

OPINION:

 [*62]  THE COURT concurred with the County Court in the opinions given in all the bills of exceptions.
JUDGMENT AFFIRMED.  

20 of 38 DOCUMENTS 

HUNT VS. EDWARDS, use of HUNTER.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

4 H. & J. 283; 1817 Md. LEXIS 19 

June, 1817, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court. Assumpsit on a promissory note by the holder against the endorsor. The general issue was pleaded.

1. The plaintiff, (now appellee,) at the trial gave in evidence a promissory note, with endorsements thereon, as follows:

"$ 412 50.     Baltimore, 20th October, 1810.

Sixty days after date I promise to pay Mr. Joshua Hunt, or order, four hundred and twelve dollars and fifty cents, value received.

Tho. Bailey."

Thus endorsed: "Pay John Cretin, or order. Joshua Hunt." "Pay John Edwards, or order. John Cretin." And also proved the hand-writing and endorsement of the defendant, (the appellant,) on said note, and that he had regular notice of the nonpayment thereof by the drawer. The defendant then proved, that before the making of the note; that is to say, on the 21st of August 1810, Bailey, for a valuable consideration, had made his promissory note payable to the defendant, sixty days after date thereof, for the sum of $ 412 50, and delivered the said note to the defendant; that the defendant having occasion for money, on the 1st of September next following the date thereof, endorsed the said note in blank, and got the same [**2]  discounted by a certain Thomas L. Roe, to whom he paid a usurious consideration for so doing; that Roe, being indebted to a certain John Hunter, delivered the said note, so endorsed by the defendant, to Hunter, as a counter-security for repayment of the money which he owed Hunter, and that Roe requested Hunter to put said note into bank for collection when due. The defendant further gave evidence, that Hunter did put the said note into bank for collection, in the name of John Cretin, whose name he was authorized to use; that Bailey, the drawer thereof, not being able to take it up at maturity, another note was drawn by Bailey, and endorsed by the defendant, as a renewal of the former, and delivered to Hunter in lieu thereof, who accepted the same, and that the note, on which the present suit is brought, is the note which was given as a renewal of that first mentioned, and was then and now is the property of Hunter, for whose use the present action is brought. The plaintiff further gave in evidence, that Hunter was the bona fide holder of the said two notes, without notice of the usurious transaction between Roe and the defendant. The defendant then moved the court to direct the jury,  [**3]  that on the foregoing statement of facts, if believed by the jury, the plaintiff is not entitled to recover in the present action. But the Court, [Bland, A. J.] refused to give such direction as prayed, and was of opinion, that on the said facts, as stated, the plaintiff was entitled to recover. The defendant excepted.

2. The defendant then offered to prove by Bailey, the drawer of said notes, that he paid to Hunter, for discount of said renewed note, (the same on which the present suit is brought,) the sum of 22 dollars, as a consideration for giving further time for payment of said sum of money, as expressed in said note. To which said evidence, so offered to be given by Bailey, the plaintiff objected. And the court was of opinion, and so decided, that Bailey was an incompetent witness to prove the said facts, which he was offered to prove by the defendant, and rejected his testimony. The defendant excepted; and the verdict and judgment being against him he appealed to this court.  

DISPOSITION:
JUDGMENT REVERSED, AND PROCEDENDO AWARDED.  

HEADNOTES:

Where a promissory note was drawn by B, payable to H, and by him endorsed to C, who endorsed it to E--Held, in an action on it by E against H, that the hand-writing of C should be proved.

Where there was usury in the creation of a promissory note, can a bona fide holder maintain an action on it against the payee?

The drawer of a promissory note is a competent witness in an action on it by the holder against the payee, to prove that the note was given on a usurious consideration.  

COUNSEL:
Hoffman, for the Appellant. The defence set up is usury, not only in the endorsement of the first note, but in the creation, or original concoction [**4]  of the second, the one sued on. The case is therefore presented upon two points: 1. If Hunter can be considered a bona fide holder of the note, unaffected by notice of usury, can he maintain an action against Hunt? 2. Is Thomas Bailey a competent witness to prove the usurious renewal of the note, and the payment by him of the usurious consideration to Hunter?

On the first point he cited Low vs. Waller, Dougl. 736. Young vs. White, Campb. 141. Rich vs. Topping, Peake, 229. Wilkie vs Rooswelt, 3 Johns. Cas. 66. Jackson vs Henry, 10 Johns. Rep. 185. Haley vs. Lane, 2 Atk. 182. Foltze vs. May, 1 Bay's Rep. 486.

On the second point he cited Jordaine vs. Lashbroke, 7 T. R. 601. Adams vs. Lingard, Peake's Cas. 117 Rich vs. Topping. 1 Esp. Rep. 117, (and note 1 by Day.) Swift's Evid. 95.

No counsel argued for the appellee.  

JUDGES:
The cause was argued before CHASE, Ch. J. and BUCHANAN, JOHNSON, MARTIN, and DORSEY, J.  

OPINIONBY:
CHASE 

OPINION:

 [*285]  CHASE, Ch. J. delivered the opinion of the Court. In this case the court are of opinion, that the court below erred by refusing to give the direction stated in the first bill of exceptions, there being no evidence to prove the handwriting [**5]  of John Cretin, one of the endorsers. The court do not decide on any other points of law arising on the facts stated in that bill of exceptions.
The court are also of opinion, that the court below erred in refusing to permit Thomas Bailey to prove the facts stated in the second bill of exceptions, as he had no interest in the event of the suit.
JUDGMENT REVERSED, AND PROCEDENDO AWARDED.  

21 of 38 DOCUMENTS 

HARRIS VS. EARLE'S Ex'rs.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

4 H. & J. 274; 1817 Md. LEXIS 14 

June, 1817, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court. Assumpsit. 1. On a special agreement--to assign a certain judgment to the amount of $ 150, and interest, or to pay that sum and interest, &c. 2. General indebitatus assumpsit for money had and received. Non assumpsit pleaded. On the trial the plaintiffs read in evidence the following agreement, which it was admitted the defendant had executed at the period it purports to bear date, viz.

"Baltimore, June 26, 1810.

For value received, I do hereby promise and engage to have assigned to James Earle, junior, of Easton, $ 150 of the judgment rendered in the late general court for the E. S. in the name of     Gray, against James Lloyd, on which there was an appeal, and in which appeal bond said Earle became the security of said Lloyd. And I do hereby promise and engage, that the said $ 150 of the above judgment, shall be due and free from all prior assignments and incumbrances whatever, and entitled to draw interest from this day till paid; and that this assignment shall be made and delivered to said Earle in Easton on or before the 20th day of next August, or that I will pay said Earle on the 1st day of September the said sum of $ 150, with [**2]  legal interest from this day in cash.

Edward Harris."

The defendant then gave evidence, that he did procure the said Gray, in said agreement mentioned, who was the Richard Gray herein after mentioned, to assign and transfer to him the judgment in said agreement mentioned, a short copy of which judgment, and the assignment thereof by Gray, the plaintiff in said judgment, to the defendant, he gave in evidence, being a judgment rendered on the 17th of April 1804, for £  75 damages, and 6761 wt. tobacco, costs; and the assignment of said judgment from Gray to the defendant, was dated 18th of July 1810. It was admitted by the plaintiffs, that the defendant did, within the time prescribed in said agreement for the assignment therein mentioned, transmit the said short copy of the judgment, and the said assignment thereon, from Gray to him, to his agent at Easton, with orders to deliver the said assignment and judgment to Earle, for the purpose of complying with his engagement of assigning $ 150 part of the said judgment to Earle, which delivery, for the purpose aforesaid, was made by the agent of the defendant. But the defendant never made any written assignment of the said $ 150,  [**3]  part of said judgment, nor caused the same to be done in any other manner than by the delivery of said judgment and assignment as aforesaid to Earle. That Earle returned said judgment and assignment from Gray to the defendant, sometime in the month of July 1811, and before the institution of the present suit. That the defendant received from James Lloyd, on account of the said judgment, the sum of $ 291 and 30 cents, on the 30th of November 1810, and after the paper aforesaid, purporting to be an assignment from Gray to the defendant, was transmitted and delivered to Earle; and that if interest could be demanded and received on said judgment, that there would still have been due and owing thereon a greater amount than $ 150. The plaintiff then moved the court for their opinion and direction to the jury, that if they believed the facts so given in evidence and admitted, the plaintiffs are entitled to recover. Which direction and opinion the Court, [Bland, A. J.] accordingly gave. The defendant excepted; and the verdict and judgment being against him, he appealed to this court.  

DISPOSITION:
AFFIRMED.  

HEADNOTES:

E H by an agreement in writing, engaged, for value received of J E, to assign to him $ 150 of a judgment recovered by R G against J L by the 20th of August 1810 or to pay to J E $ 150, with interest. E H obtained from R G on the 18th of July 1810, an assignment of the judgment he had recovered against J L, which was for l75 damages and 6761 lbs. tobacco, costs, rendered on the 17th of April 1804, a short copy of which judgment, with the assignment of R G, was transmitted by E H to J E before the 20th of August 1810, and which J E refused to receive, and it was returned to E H in July 1811 E H received from J L on account of the judgment $ 291 30, on the 30th of November 1810, leaving, if interest could be demanded on the judgment, a greater amount than $ 150 In an action of assumpsit by J E against E H to recover the $ 150, and interest--Held, that he was entitled to recover 

COUNSEL:
Winder, for the Appellant, and by

Hoffman, for the Appellees.  

JUDGES:
The cause was argued [**4]  before CHASE, Ch. J. and JOHNSON, MARTIN, and DORSEY, J.  

OPINION:

 [*275]  JUDGMENT AFFIRMED.  

22 of 38 DOCUMENTS 

TAYLOR vs. TERME and JAUFFRET.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

3 H. & J. 505; 1815 Md. LEXIS 20 

May, 1815, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court. Assumpsit on a promissory note. The general issue was pleaded; and at the trial the plaintiff, (now appellant,) gave in evidence the note, which was dated the 21st of December 1808, and drawn by Jauffret, one of the defendants below, for $ 1950, payable 60 days after date to the plaintiff, or order. It was admitted that Jauffret was a Frenchman, carrying on trade and commerce in the city of Baltimore; and that being in want of a clerk or book keeper who understood the English and French languages, he applied to the other defendant (Terme,) for that purpose; that Terme asked him $ 800 a year as a salary for his services, which Jauffret declined giving, but promised to give him the one fourth part of the profits arising from his business, which Terme agreed to accept, and in pursuance of such agreement entered into the employment of Jauffret as a book keeper. And it was also admitted, that the promissory note in question was afterwards given by Jauffret to the plaintiff, for so much money advanced by him to Jauffret in the course of his said trade and dealing. The plaintiff also gave in evidence, that Terme, during the time of his being in the service [**2]  of Jauffret, had no control or management of the business of Jauffret, other than as a clerk or bookkeeper, and that the business was conducted and carried on in the name of Jauffret alone. And he then prayed the court to direct the jury, that he was entitled to recover. But the Court, [Nicholson, Ch. J.] was of opinion, that Terme could only be considered, from the evidence, as the hired servant of Jauffret, and refused to give the direction. The plaintiff excepted; and the verdict and judgment being against him he appealed to this court.  

DISPOSITION:
JUDGMENT REVERSED, AND PROCEDENDO AWARDED.  

COUNSEL:
Pinkney and Winder, for the Appellant, contended, that where a person derives a benefit from the trade in which another is engaged, by receiving a portion of profits, he is liable as a partner, although he expressly stipulates that he is not to be liable. If he takes the profits, he must bear the loss. They referred to Watson on Part. 9, 10, 13, 19, 26, 124, 169, 201. Waugh vs. Carver, 2 H. Blk. 245. Morse vs. Wilson, 4 T. R. 354. Hesketh vs. Blanchard, 4 East, 147. Ord on Usury, 47. 1 Com. on Cont. 285, 286. Grace vs. Smith, 2 W. Blk. 999.

Martin, for the Appellees, admitted that the authorities [**3]  cited established the principle relied upon by the appellant's counsel, but contended that those decisions, being since the revolution, were not binding on this court.  

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

OPINION:

 [*506]  JUDGMENT REVERSED, AND PROCEDENDO AWARDED.  

23 of 38 DOCUMENTS 

TAYLOR & WARREN VS. FERGUSON & ROBERTSON.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

4 H. & J. 46; 1815 Md. LEXIS 11 

December, 1815, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from a decree of the Court of Chancery. The bill of the complainants, (now appellants,) stated, that they on the 30th of March 1802, being then engaged in commerce and shipping in Norfolk, in the state of Virginia, and possessed in their right of a ship called The Fox, of the value of $ 4000, and supposed by them to be on a voyage from Kingston, in the Island of Jamaica, to Port Republican, and from thence to Norfolk, and wishing to make insurance on the said ship to the amount of her said value, Taylor, one of the complainants, wrote a letter of the above date to the defendants, (the appellees,) who then carried on trade in the city of Baltimore, and were the complainants' regular agents and correspondents in that city, for making insurance, and every other business of a commercial nature which they had occasion to transact there, containing this request, viz. "I wish to have insurance effected from Jamaica to Port Republican, and from thence to Norfolk;" which letter was duly received by the defendants, and acknowledged by them. That having, soon after the date of the said letter, received intelligence, as the fact was, that the ship, instead of going to Jamaica, had proceeded [**2]  to Jeremie, and was about to return from thence to Norfolk, by the way of Cape Francois, and wishing to accommodate the insurance to be made on her to this new voyage, the said Taylor did, on the 6th of April 1802, address to the defendants, and put into the post office at Norfolk, a second letter of that date, as follows, viz. "I wrote you on the 30th ultimo, directing insurance on the ship Fox, from Jamaica to Port Republican. I find, instead of proceeding to that port, they went to Jeremie, where I have heard of their arrival. From thence they will proceed to Cape Francois, at which port she has a cargo to discharge, which was taken in at Jeremie. You will therefore please to have these things mentioned in the policy. From Cape Francois she will come to Norfolk." The bill then charged, that the defendants received the said last mentioned letter in due course of post, but as the receipt of it by them is a matter resting in their private knowledge, which they always avoided acknowledging, and now deny, the complainants have no method of establishing the fact of the said receipt, except by a discovery, by the defendants, on oath. That the defendants wholly neglected and omitted to [**3]  procure insurance on the ship, according to the directions contained in said letters; and also omitted and wholly neglected to give the complainants any information respecting such omission and neglect, or in any manner respecting the said insurance, so as to enable them to apply for and procure it through some other channel; whereby they were prevented from making, or procuring to be made, any insurance on the ship, being well satisfied, from all the circumstances stated above, that it had been procured by the defendants pursuant to their said directions. That the ship was cast away, and wholly lost, during her said voyage from Jeremie to Norfolk, through stress of weather, and the danger of the seas, of which event they received the first intelligence on the 15th of April 1802. That they well hoped, and frequently requested, in a friendly manner, of the defendants, that they, having taken on themselves the insurance of the ship, by their aforesaid neglects and omissions, would forthwith, on receiving information of the loss, pay to the complainants the amount of the insurance so by them directed to be made, after deducting the usual premium at that time paid for insurance on such [**4]  a voyage. But the defendants utterly refused to comply and pay to the complainants any part of the said insurance--falsely pretending that they did not receive the complainants' said letters. Prayer for a discovery, on oath, of matters resting in the knowledge of the defendants, &c. and that they may be decreed to pay to the complainants the sum of money so by them directed to be insured on the ship, with interest, &c. and for further relief, &c. The answer of the defendants admitted the receipt on the 6th of April 1802, of the letter of the 13th of March 1802, and that on the 7th of April 1802, they applied to the Baltimore Insurance Company to make insurance on the said ship for the voyage stated in that letter, but no insurance was effected on said voyage, because it was then known to the said office that the ship had sailed from Kingston, and had arrived at Jeremie, of all which they informed Taylor, one of the complainants, by letter, bearing date on the 7th of April 1802. They admit the receipt of the letter of the 6th of April 1802, but they cannot ascertain the precise period at which it was received, but suppose it to have been about the 13th of that month. That the said letter,  [**5]  immediately after its receipt, was mislaid, and was not found or remembered until about the beginning of May 1802, and not until accounts had been received of the loss of the ship. They averred that the ship was not lost on the voyage from Jeremie to Norfolk, but that she was lost at Jeremie, and before she had completed her lading at that port. That the ship was not wholly lost to the complainants, but that materials to the amount of $ 1000 were saved to the owners. That Taylor, one of the complainants, was indebted to the defendants in the sum of $ 1672 29. That after the receipt of the letter of the 6th of April 1802, the defendants admit they did not apply for insurance on the said ship, but this omission was the effect of accident, and not of any intention to injure the complainants; and the defendants insisted, that the complainants had not been injured by such omission. That the letter of the 6th of April 1802, referred to a policy supposed to be effected on the voyage described in the letter of the 13th of March 1802. No such policy had been effected; and there was nothing in the letter of the 6th of April 1802, which ordered the defendants to insure the ship at Jeremie. If,  [**6]  therefore, the defendants had caused insurance to be effected on the ship from Jeremie to Cape Francois, and thence to Norfolk, a loss at Jeremie would not have been covered by the policy. The defendants consider themselves well warranted in availing themselves of this objection, which would have protected the underwriters if a policy had been effected. That the letters of the 30th of March, and 6th of April 1802, were written by Taylor, one of the complainants, and the defendants did not know, neither did they believe, the said ship was the joint property of the complainants. They deny that the order was in effect an order to insure the interest of both the complainants, or that it ought to have been, or was so understood, at the time of receiving it by the defendants; but on the contrary it amounted only to an order to insure the interest of Taylor. That if the insurance had been effected according to the order, and a loss had accrued, which was covered or protected by the policy, nothing more than Taylor's interest could have been recovered.

It was admitted by an agreement between the parties, that the ship was at the time of the voyage and loss, of the value of $ 4000, and [**7]  was lost at Jeremie, as stated in the answer of the defendants, by the dangers of the sea. The account of the defendants against the complainant, Taylor, was admitted to be just. The materials saved from the ship, after deducting expenses, amounted to $ 198. The cause was submitted to the chancellor on the bill, answer, exhibits and admissions.

KILTY, Chancellor, (September term 1809.) The object of the bill is to compel the defendants to pay to the complainants the amount of insurance directed to be made, but which they had neglected to make. It is obvious that this is a matter proper for an action on the case at law. The reasons assigned for coming into this court are, that the complainants had no evidence of the delivery of their second letter of the 6th of April 1802. That the receipt thereof rested in the private knowledge of the defendants, which they always avoided acknowledging, and then denied. The prayer of the bill is, that they may set forth and discover whether they did not receive the letters as charged, and that they may be decreed to pay the sum directed to be insured, after deducting for premium of insurance. The greatest objection to the jurisdiction of this [**8]  court arises from the nature of the claim, which is not founded upon any agreement, or any matter which can be made the subject of an account, but which can be supported only by establishing that there was a breach of orders, negligence or fraud, on the part of the defendants. If the jurisdiction can be sustained, it must be from the equity founded on the second letter, (on which the remedy at law depended,) being concealed or denied by the defendants, so as to entitle the complainants, not only to a discovery, but to relief by payment of the sum due, although this discovery might have been obtained here in aid of a suit at law. And it is further to be observed, that this point is not contested by the defendants, as will be seen by the agreement to submit the case. But the right of the complainants to relief, if it is to be established in this court, must depend on the decision of the questions of law, and the establishment of matters of fact, which do not appear to be properly determinable by a court of equity, but are proper for the determination of a court and jury; which may be obtained by the trial of issues sent from this court. Decreed, that there be tried in Baltimore county [**9]  court the following issues, &c. If the counsel for the complainants should be unwilling to have these issues, or any others, tried for the support of the case, and would prefer to risk the dismissal of the bill, the chancellor will proceed to decree accordingly.

The chancellor having been requested by the complainants' counsel to proceed to decide and decree upon the bill, answer and proofs, at December term 1811, he decreed, that the bill be dismissed with costs. From which decree the complainants appealed to this court.  

DISPOSITION:
DECREE AFFIRMED.  

HEADNOTES:

A bill in chancery charged that the complainant, by letter, instructed the defendants, as their agents, to cause an insurance to be effected for them on a vessel then on a voyage, &c. which the defendant neglected to do, and the vessel was lost. The prayer of the bill was, that the defendants discover on oath, the matters resting in their knowledge, &c. and that they might be decreed to pay to the complainants the sum of money so by them directed to be insured on the vessel, with interest, &c--Held, that the relief prayed by the bill is a matter not properly cognizable in a court of chancery, and that that court had no jurisdiction further than to compel the discovery which forms one of the objects of the bill, and that for the rest, the complainants ought to be left to their remedy at law.  

COUNSEL:
Harper, for the Appellants. There were two objections made by the defendants in the court of chancery--1. The right of recovery generally. 2. The right of Warren, one of the complainants, to recover, because he was not mentioned in the letter ordering the insurance. He contended that both of the letters were to be taken together. The last letter referred to the first, and they are to be connected. There was no new order for insurance given, but only that new facts were to be stated--to substitute Jeremie and Cape Francois, instead of Port Republican. The true meaning was, that it should be on a voyage from Jamaica to Jeremie, to Cape Francois [**10]  and to Norfolk, so as to cover the vessel during the whole of the voyage from Jamaica to Norfolk, to and at all the different places where she was to stop. Jeremie and Cape Francois were substituted as intermediate ports, instead of Port Republican, first mentioned. The vessel was covered at Jeremie--at all events an insurance from her arrival there. He referred to Gregory v. Christie, 1 Marsh. 273. Thompson v. Taylor, 6 T. R. 478. Horncastle vs. Stuart, 7 East, 400. Marsden vs. Reid, 3 East, 572.

2. It may be said that the chancellor had no jurisdiction of the case, except to grant the discovery. He contended, that the practice of the court of chancery in this state is different from that of the English courts. It tends to prevent litigation, and the multiplicity of suits. Unless it be some very peculiar case, the party need not carry it on in two courts. It is a maxim, that a court having jurisdiction in part, has it in the whole; and the practice is, that when the court of chancery once takes a case under its cognizance, it goes on to give the relief required. It prevents the confounding of two jurisdictions.

Pinkney, for the Appellees. The decree of the chancellor dismissing [**11]  the bill, is perfectly correct on two grounds--1. A court of equity is incompetent to give relief in this case, the matter being exclusively at law. 2. The complainants have no case on their own showing.

1. This is a claim against agents for breach of orders, and a special action on the case in a court of law only gives the party remedy. Every question involved in the case is a question of law, and involves no one principle with which the court of chancery has cognizance. No case can be shown where chancery has interfered in a case of this nature--breach of duty--breach of orders. The jury are to assess the damages. They are first to ascertain the order for insurance--the extent and injury sustained. It cannot be said that a court of equity has original cognizance of a case like this. There are many cases where the court of chancery has concurrent jurisdiction with a court of law; but there are cases exclusively cognizable in a court of law, and such is the present case. There was no demand in the bill, except the discovery, which the court of chancery has any thing to do with. The complainants alleged that they could not prove the receipt of the letters, and called on the defendants,  [**12]  in chancery, to state whether they had not been received. This gave them no pretence to proceed on in their case there. All they had a right to ask was for a discovery of the fact of the receipt of the letters. The question then is, that in a case exclusively applicable to a court of law, and where a discovery is wanting, whether the party can transfer the case from a court of law to a court of equity, and ask for relief? There never was such a case in chancery. The practice is to bring the suit at law, and then apply to chancery for a discovery, to be used in the trial at law. There can be no relief in equity where there is full and adequate remedy at law. There is a single exception--for the specific performance of a contract, but the relief is different. In the one court the contract is to be specifically performed, but in the other damages are given. But here there is no pretence that the relief would be different in equity from what it would be at law. Here the claim sounds altogether in damages; and to ascertain the damages, must be by the verdict of a jury. How could the chancellor assess the damages? He must send issues to be tried by a jury in a court of law, otherwise it [**13]  would be drawing from the jury that which exclusively belongs to them, and which would be attended with dangerous consequences. There is no ground alleged for the jurisdiction of chancery, but the defect of evidence; but that may be remedied by the discovery. It is supplied on the coming in of the answer. The moment the fact is disclosed, the object is attained, and that court is functus officio, and the case is for a court of law. The case is so clear, that it is wholly unnecessary to refer to any authorities. This point was fully discussed in this court in West vs. Beanes, 3 Harr. & Johns. 568. The agents have failed to perform the complainants orders. They may have mislaid the letters. There is no fraud alleged, and it is a case strictly at law, and would be a most extraordinary subject for a court of equity. It is a case that at law relief would with reluctance be granted. How then in chancery can there be relief?

2. From the letters, the insurance could not be made--no valid policy could be effected. If it had been effected under the first letter, it would have been void--the deviation from Port Republican to Jeremie would have annulled the policy. The letter from the defendants,  [**14]  in answer to that first received, stated that the insurance could not be effected. The vessel was lost at Jeremie; and the question is, whether if the insurance had been effected under the last letter, (which was very ambiguous,) it would have covered the property at Jeremie? It is an equitable rule that written orders should be clear and explicit. If they are ambiguous, a court of equity cannot be called on for relief. They must not be susceptible of different constructions, so as to bind an agent and benefit the writer. It must be shown that the orders were so clear as not to be misunderstood, so that the agent would be in fault by not giving them a true construction. The first order was for insurance from Jamaica--not at Jamaica. The second order directs no insurance at and from Jeremie There are no precise directions except in the first letter, which says it must be on the vessel from Jamaica to Port Republican, and from thence to Norfolk--not at and from The second order places the insurance, with reference to Jeremie, as the first order did when the vessel was at Jamaica, which was to insure from that place. The conclusion is, that the agents were to insure from Jeremie in the [**15]  manner they were directed to insure from Jamaica. The policy, if it had been made under the first order, could not be changed by substituting Jeremie for Jamaica, and Cape Francois for Port Republican. The policy would have been void. There must have been a new policy. When the first order was received, a part of the voyage had been performed--from Jamaica to Jeremie. Would it have been justifiable in the agents to make their principal pay a premium on a performed voyage? They might well construe the order to be, that all that part of the voyage which was performed was out of the case. This was such a construction which they might give without making them liable under such an order. If they were mistaken, it was such a mistake as an honest man might well fall into. They were as much bound to save premium as they were to insure. Who is to suffer by an ambiguity? Surely he who uses it. The agents were not bound to comply with the orders, because of their ambiguity. Moore vs. Morgue, Cowp. 479. The second order does not prescribe how the insurance was to be effected. Facts were to be substituted; and suppose they had been substituted, what effect would they have? It is not a clear case [**16]  that the first order was to insure the vessel at Jeremie. The cases cited were cases for freight, and they do not go clearly to decide that if the insurance was from one place to another, and then to another, without saying at, and the loss was at one of the places, that the insured could recover. To recover against the defendants it must be shown, that if the insurance had been effected, the complainants could have recovered against the underwriters.  

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

OPINIONBY:
BUCHANAN 

OPINION:

 [*53]  The opinion of the court was delivered by
BUCHANAN, J. It is the opinion of the court, that the relief prayed for in the bill of complaint in this case, is a matter not properly cognizable in a court of chancery, and that that court had no jurisdiction further than to compel the discovery which forms one of the objects of the bill; which being obtained, the complainants ought to be left to their remedy at law. And therefore, without inquiring into the correct interpretation of the letters, which are alleged to have been written to the defendants by one of the 

 [*54]  complainants, or expressing any opinion as to their [**17]  legal effect and operation, in which there would be no propriety, that being a subject proper for the consideration of another tribunal, the decree of the chancellor is affirmed.
DECREE AFFIRMED.  

24 of 38 DOCUMENTS 

FULTON vs LEWIS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

3 H. & J. 564; 1815 Md. LEXIS 30 

May, 1815, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from the Court of Oyer and Terminer, &c. for Baltimore county. This was a petition for freedom, and the general issue pleaded.

At the trial the following facts were admitted in evidence: John Levant, a married man, being a native and resident of the Island of Saint Domingo, removed from that place in July 1793, flying from disturbances which then existed there, endangering the lives and property of the inhabitants, and brought with him into this state three negroes, of whom the petitioner, (now appellee,) is one, whom he then and before owned as a slave. That in May 1794, he sold the petitioner, as a slave, to William Clemm, who sold him as such to the defendant, (the appellant.) That said Levant arrived at Baltimore in August 1793, and continued to reside there until sometime in 1796, when he returned to the West Indies. The defendant thereupon prayed the direction of the court to the jury, that if they believed the facts, the petitioner was not entitled to his freedom. This opinion the Court, [Scott, Ch. J. ] refused to give; but directed the jury, that upon these facts the petitioner was free. The defendant excepted; and the verdict and judgment being against him,  [**2]  he appealed to this court, where the case was argued before CHASE, Ch. J. and BUCHANAN, NICHOLSON, EARLE, JOHNSON, and MARTIN, J.  

DISPOSITION:
JUDGMENT AFFIRMED.  

COUNSEL:
Glenn, for the Appellant, contended that the act of 1783, ch. 23, under which the petitioner claimed his freedom, meant only a voluntary importation of slaves, and not an importation arising from absolute necessity, produced by causes over which the owner, as in this case, had and could have no control. He referred to De Kerlegand vs. Negro Hector, 3 Harr. & M'Hen. 185, and the act of 1792, ch. 56.

Montgomery, (Attorney-General,) Jenings and Scott, for the Appellee.  

OPINION:

 [*565]  JUDGMENT AFFIRMED.  

25 of 38 DOCUMENTS 

CARROLL, et ux. VS. SMITH.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

4 H. & J. 128; 1815 Md. LEXIS 18 

December, 1815, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court. This was an action of trespass q. c. f. to recover damages for a trespass on part of a tract of land called Swan Harbour, No. 7. The general issue was pleaded, and the lands were located on plots returned under a warrant of resurvey for that purpose.

1. In the trial the plaintiffs, (the appellants,) having proved to the jury that they were legally entitled, in right of Sophia Carroll, one of the plaintiffs, to lot No. 7, part of Swan Harbour, containing 120 acres, agreeably to the true metes and bounds of said lot, under a deed from Archibald Buchanan to John Pearce, dated the 12th of April 1785, the defendant, (the appellee,) read in evidence a deed from the said Buchanan to Harry Dorsey Gough, under whom the plaintiffs claim lot No. 2, part of Swan Harbour, dated the 12th of April 1785, for 180 acres of the said land, describing the same by courses and distances. Also a bond of conveyance from the said Buchanan to the said Pearce, dated the 21st of April 1784, of a lot or piece of ground, being part of Swan Harbour No. 7, described by metes and bounds, containing 120 acres. The defendant also, to show the true location of lot No. 7, as originally [**2]  sold by Buchanan, offered to give in evidence a paper purporting to be a plot of Swan Harbour, copied from an anonymous plot of said land, and of its division into eight lots, in the possession of Samuel Vincent, by Jehu Bouldin; and also offered evidence to prove, that the said land called Swan Harbour, was sold at public auction in eight different lots, numbered from No. 1 to 8, inclusive, by a plot which was made for that purpose by James Baker, except lots No. 1 and No. 7, and that lot No. 3 was sold to Robert Ballard, and lot No. 2 to the said H. D. Gough, and that lot No. 1 was afterwards sold to the said Gough, and lot No. 7 to John Pearce; and proved by Samuel Vincent, a competent witness, that he was for near 20 years the agent and clerk of the late H. D. Gough, under whom the plaintiffs claim, during which time said Gough, who had then bought part of the land called Swan Harbour, gave to him, with other papers, a plot of Swan Harbour laid off into lots, and directed him to take care of said papers, but made no particular mention of said plot, or any other of said papers; that the witness did not know whether it was a correct plot, nor did he ever hear the late Mr. Gough say [**3]  that it was, or say any thing on the subject of it, further than as aforesaid. The defendant also proved by Jehu Bouldin, another witness, that he copied said plot in the office of Vincent, and made therefrom the paper now offered in evidence, which he proved to be a true copy of the said plot, in the lines, words and figures, on said paper. It was further proved by James Baker, a competent witness, that he made the original survey and plot of Swan Harbour; that in making the said survey, he cornered lots No. 2, No. 6, and No. 7, at the same place, which place he believes to be the place marked M on the plots returned in this case. That in making the division of the said tract into lots, he began one line at the place marked H on the plots, and ran into Tobacco-House cove, and as he believes to the said place marked M, for the division line between lots No. 2 and lots No. 1, 3, and 7; and that he was a commissioner many years ago on a commission to settle the divisional lines between lots No. 2 and No. 4, on one side, and lots No. 5 and No. 6 on the other, when the said divisional line was so settled as to terminate at the said place marked M, being the place at which he believes that [**4]  lots No. 2, 6 and 7, originally cornered. And he further proved, that he saw in the possession of James Carroll, one of the plaintiffs, the said plot from which Jehu Bouldin copied the one now offered in evidence; that it had the general appearance of the plot he had made for said Buchanan, but he has no knowledge whether the same was a true copy from his said original plot, or by whom it was made, or whether it was a correct plot of the said lands. It was admitted that the original plot was lost, and that the said plot formerly in possession of the plaintiff James Carroll was accidentally lost several years ago by certain land commissioners, to whom he had lent it, before the institution of this suit, and who were appointed by Baltimore county court to ascertain and settle the true location of the said lot No. 3, declaring to them that he had no knowledge whatever, and could obtain no information concerning the correctness of the said plot, but was willing to let it be recorded as evidence between the parties of the true location of the lots of Swan Harbour, as sold by Archibald Buchanan, which however was not done. The defendant then prayed the court, that upon the facts given in [**5]  evidence, the said plot might be offered in evidence to the jury. To which the plaintiffs objected. But the Court, [Nicholson, Ch. J. and Bland, A. J.] overruled the objection, and permitted the plot to be given in evidence to the jury for the purpose aforesaid. The plaintiffs excepted.

2. The plaintiffs then offered evidence to prove, that in the year 1785 John Pearce, the purchaser and then proprietor of lot No. 7 of Swan Harbour, put up a fence from the letter A on the plot, to C. and from C to 49. And also from A to B, as said lot No. 7 is located by the plaintiffs; and that the plaintiffs, and those under whom they claim, have been in the peaceable possession of said lot as located by them, holding it under enclosures, and claiming it as and for lot No. 7, for 20 years and upwards next preceding the time of bringing the present action; and that the said land, located by them as lot No. 7, has for 20 years, and upwards, next preceding the bringing of said suit, been commonly known and called by the name of lot No. 7. And the plaintiffs prayed the court to direct the jury, that if they should believe this evidence they, the plaintiffs, were entitled to recover. Which direction [**6]  the court refused to give, and the plaintiffs excepted.

3. The plaintiffs then gave in evidence, that at the sale made at public auction as aforesaid, of parts of Swan Harbour, which took place on the 15th of October 1783, the lots No. 1 and No. 7, nor either of them, were sold, and that lot No. 3, which was then sold to Robert Ballard, was soon afterwards relinquished by him to the said Archibald Buchanan, who afterwards sold it to James Gittings, and conveyed it to him by metes and bounds, without any reference whatever in the deed of conveyance to any plot or division, by a deed bearing date on the 24th of December 1784. And also gave in evidence, that on the 21st of April 1784, the said Archibald Buchanan, the proprietor of Swan Harbour, sold the said lot No. 7 to John Pearce, by a bond of conveyance of that date; and also gave in evidence a deed, dated the 12th of April 1785, whereby the said Buchanan conveyed lot No. 1, part of Swan Harbour, to Harry D. Gough, by metes and bounds. The defendant offered no evidence to prove that the said lots No. 1. and No. 7, or either of them, were sold at any time, or to any person, at public sale, or any evidence that they, or either [**7]  of them, were sold by a plot, other than the circumstance that a plot and division of Swan Harbour was made as aforesaid, and that the said plot and division was exhibited at the said public sale to the auctioneer and bidders, and the other circumstance, that in the deed executed by Buchanan, to Pearce for lot No. 7, pursuant to the said bond of conveyance, the said lot is described "as all that part of Swan Harbour, known and distinguished on the plot thereof as lot No. 7," and other than the matters before stated; and the defendant offered no evidence, except that before stated, of the existence of the original plot of Swan Harbour, nor of the manner in which the lines thereof were run, or in which the said tract was thereon divided into lots, nor of the lines and boundaries of these lots as thereon laid down. The defendant then prayed the opinion of the court, and their direction to the jury, that if the jury believe the sales of lots No. 7, 3 and 1, were made at public auction, or at private sale, by a plot, the purchasers, and those claiming under them, have a right to hold the lots according to the location which was made on the plot by which they were sold; and that the plaintiffs [**8]  cannot give evidence that the surveyor, when running the lots preparatory to the making out the plot by which the sale was made, run the divisionary or other lines different from the lines located on the plot. Which direction the court gave. The plaintiffs excepted; and the verdict and judgment being against them, they appealed to this court.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

Under what circumstances a copy of a private plot of the land in dispute may be read in evidence.

The plaintiff in an action of trespass having had upwards of 20 years possession by enclosures of what was supposed to be lot No. 7, on which the trespass was charged to have been committed, cannot support his action for a trespass committed within the enclosures, if not on lot No. 7.

If the sales of certain lots of land were made at public auction, or at private sale, by a plot, the purchasers have a right to hold the lots according to the location which was made on the plot; and evidence cannot be given that the surveyor, when running the lots preparatory to the making out the plot, run the division or other lines different from the lines located on the plot.  

COUNSEL:
Harper, for the Appellants. 1. On the first bill of exceptions he contended, that there was no evidence that the plot offered in evidence was a genuine one, and a trace copy of that under which the purchase was made. The rule is, that a copy cannot be given in evidence without proof and notice to produce the original.

2. On the second bill of exceptions he contended, that the plaintiffs, having had 20 years possession by enclosures, of what was supposed to be lot No. 7, it was sufficient for them to support a trespass committed within the enclosures.

3. On the third bill of exceptions he insisted--1. That it was not proper to leave it to the jury to find the lots were sold at private sale by a plot. 2d. And if proper to leave it to the jury, the purchasers were not bound by the plot, if they could show a mistake [**9]  in the plot. 3d. That there was no evidence of the existence of a plot to which the attention of the jury was to be called; and 4th. That the plaintiffs were not precluded from showing that the surveyor, in making the plot, committed a mistake, and that it was not made pursuant to the running.

Martin for the Appellee, on the second bill of exceptions referred to 1 Esp. Dig. 310.  

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

OPINION:

 [*132]  THE COURT agreed with the County Court in the opinions expressed in each of the bills of exceptions.
JUDGMENT AFFIRMED.  

26 of 38 DOCUMENTS 

OWINGS & CHESTON VS. NICHOLSON & WILLIAMS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

4 H. & J. 66; 1815 Md. LEXIS 14 

December, 1815, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court. This was an action of assumpsit for money had and received, laid out and expended, and lent and advanced. The defendants, (now appellants,) pleaded the general issue.

1. At the trial the plaintiffs, (the appellees,) read in evidence a bill of lading signed by Henry Yearly, master of the brig Hunter, dated the 18th of August 1810, for the whole of the cargo of the said brig, shipped by Samuel Wright at the port of Baltimore, and bound to Martinique, and there to be delivered to Silas Marean. And an indorsement made on said bill of lading by Wright, on the 24th of August 1810, while the brig was on the high seas prosecuting her voyage to Martinique, whereby, in consideration of the sum of one dollar, he assigned, &c. to the plaintiffs, the bill of lading, and the merchandise therein mentioned. They further gave in evidence, a deed regularly executed, delivered, acknowledged and recorded, from Wright to them, dated the 24th of August 1810, being in trust to secure the plaintiffs as endorsers, whereby was conveyed to them a tract of land called Stratton, in Queen-Anne's county; also the brig called the Hunter, together with her tackle, &c. also [**2]  all and singular the cargo, goods, &c. laden or to be laden on board the said brig, during her then voyage, and all the profits and proceeds thereof, &c. They also gave in evidence, that the brig, with her cargo on board, sailed on or about the 18th of August 1810, on her voyage to the Island of Martinique, where she arrived on or about the 5th of October in that year. They further gave in evidence the deposition of Benjamin Noland, taken on their part, stating, that he sailed from the port of Baltimore on or about the last day of August 1810, to the Island of Martinique; that he went out by the order of the defendants, and Andrew, Benjamin, James and Thomas Ellicott, or Elias Ellicott, but he believes Thomas Ellicott, to seize the cargo of the brig Hunter, capt Yearly, that sailed a few days previously thereto from Baltimore to the Island of Martinique, with a cargo of flour belonging to Samuel Wright. He had a letter to that purpose from the defendants, and the said Ellicotts, to seize the said cargo for the purpose of securing debts due to them respectively from Wright. He arrived at Martinique in September 1810, and before the arrival at that place of the brig Hunter. He received [**3]  from Mr. C. B. Tuttle, the partner of Silas Marean, the consignee of the said cargo, and who was then absent from the Island, the sum of $ 6700, and upwards, about the last of October 1810, being part of the proceeds of the cargo of the brig Hunter, received for the account of the defendants, and the Ellicotts. He returned to Baltimore in November or December 1810, with the said sum of $ 6700, and upwards, which he then paid over to the defendants and the Ellicotts, on account of their respective claims due by Wright to them. He took to Martinique with him separate powers of attorney from the defendants, and from Andrew Ellicott, and others, which said letters of instructions herein before mentioned, and powers of attorney, he delivered up, according to the best of his recollection, to the parties who gave them to him, but he is not certain whether he delivered the powers of attorney up to the parties, or whether he left them at Martinique. The plaintiffs further gave in evidence the agreement signed by the counsel, and annexed to the deposition of Noland, in these words: "It is agreed that the annexed deposition be read in evidence in the above cause, so far as the same matters contained [**4]  are competent and legal evidence." They also gave in evidence, that Noland, on his return from the Island of Martinique to Baltimore, sometime in November or December 1810, paid to the defendants the sum of $ 735, part of the said sum of $ 6700, which part was claimed by the defendants as being due to them from Wright, by virtue of a certain promissory note from him to them made on the 15th of August 1810, and payable 85 days after date, for $ 735; which note they gave in evidence. And the plaintiffs, for the purpose of proving the precise sum paid by Noland to the defendants, produced Samuel Sterett, who proved that James Cheston, one of the defendants, did, immediately after the arrival of Noland, deliver the said promissory note to the witness, and requested him to deliver it to Wright, or his trustees, as they the defendants had received the amount thereof in consequence of an attachment, or some legal proceeding in the West Indies; that the witness did go to the counting-house of Wright, for the purpose of delivering the said note, but not finding him there, he afterwards presented it to N. F. Williams, one of the present plaintiffs, who declined receiving it. The defendants then [**5]  offered to read in evidence the cross examination of Benjamin Noland, taken at the same time with the direct examination, under the agreement of counsel herein before set forth, to wit: "The said Benjamin Noland being cross examined on behalf of the defendants, upon his oath answered and saith: Interrogatory 1st. When you arrived at Martinique did you seize the cargo of the brig Hunter, or institute any process against it on the part of the defendants? To which he answers, that when he arrived there he employed a lawyer to seize the cargo, and the lawyer instituted a suit in the court of St. Pierres, and when the brig arrived, the cargo was seized and condemned for the monies due to the defendants and Messrs. Ellicotts. That Mr. Benjamin Nicholson, declaring himself to be the agent of the plaintiffs, instituted counter proceedings in the said court, to which the plaintiffs were made parties, and that the court definitively declared a sale of the property for the payment of the claims of the defendants, and Ellicotts. That the sum of money the deponent received from Mr. Tuttle was paid in pursuance of the decree of said court." To this evidence the plaintiffs objected; but the Court,  [**6]  [Hollingsworth, A. J.] was of opinion, that it was competent evidence to prove that the money was paid by Tuttle, and that Noland received the money in the character, and under the impressions stated in his last mentioned deposition, and no further; and it was read accordingly. The defendants excepted.

2. The plaintiffs further gave in evidence, that the brig Hunter was the property of Wright, and that on the 15th of August 1810, he was, and during his life afterwards continued to be, a citizen and resident of this state; and that the plaintiffs and the defendants, and the Ellicotts, then were and yet are citizens and residents of this state; and that the cargo of the brig Hunter, mentioned by Noland, is the same cargo of the brig Hunter, mentioned and contained in the deed and bill of lading aforesaid. They also gave in evidence, that they, for the accommodation of Wright, and without any other consideration or motive, did endorse and draw for Wright the promissory notes in the deed of August the 24th 1810 enumerated, which notes were discounted by Wright in one of the banks of Baltimore for his own use and benefit, and the monies arising therefrom was received by him; and [**7]  also that the plaintiffs took up and discharged the said notes as they severally became due, before the bringing of this action. They also gave in evidence, that the whole property assigned to them in and by the said deed and assignment, was not sufficient to reimburse them for the sums by them paid in discharge of the said notes. The plaintiff then prayed the court to direct the jury, that if they believed the facts stated on the part of the plaintiffs, and that the articles mentioned in the bill of lading were the property of Wright, who shipped the same on the 18th of August 1810, on board the brig Hunter, then bound on a voyage to the Island of Martinique, in the West Indies, and consigned them to Silas Marean of that Island, for sales and returns, that immediately afterwards the brig, with the said articles on board, sailed and proceeded on the said voyage; that on the 24th of the said month, and long before the arrival of the brig at Martinique. Wright, for a valuable consideration, sold, transferred, and assigned the said articles in the bill of lading mentioned, to the plaintiffs, by an assignment under his hand of the said bill of lading, and also by the deed aforesaid; that [**8]  the brig and cargo arrived at St. Pierres, in Martinique, some time in the beginning of the month of October in the same year, when and where the cargo was delivered by the master of the brig to a certain C. B. Tuttle, the co partner in trade of Silas Marean, and were by him sold, and the proceeds thereof, amounting to $ 6700, and upwards, were by him received; that the defendants, together with Andrew Ellicott, &c. having demands against Wright, sent out to Martinique a certain Benjamin Noland as their agent, with instruction to seize the cargo for the purpose of satisfying the demands which they had against Wright; that Noland did, as their agent, without the authority of Wright, or of the plaintiffs, or either of them, receive from Tuttle, some time in the month of October 1810, the sum of $ 6700, and upwards, being part of the proceeds of said cargo, as payment of the said demands; that Noland on his return from Martinique, some time in the month of November or December in the said year, paid to the defendants the sum of $ 735, part of the sum of $ 6700, and upwards, which was claimed by the defendants as being due to them by Wright, by virtue of his promissory note to them of [**9]  the 15th of August 1810, and payable 85 days after date; that then the plaintiffs are entitled to recover from the defendants the sum so by them received. The defendants then further gave in evidence, that Wright, at the time of making said deed to the plaintiffs, was wholly insolvent, and unable to pay his debts; and that he did afterwards apply to the general assembly of this state, and obtained a special act of insolvency, which said act, 1810, ch. 169, they gave in evidence; and that Wright did, in pursuance of and by virtue of this act of assembly, apply by petition to Baltimore county court, who released him as an insolvent debtor; which petition, with all the papers and proceedings thereon, they gave in evidence. The plaintiffs then gave in evidence, that at the time when Wright purchased the said flour from the defendants, and gave his note therefor, he was in good credit, and believed himself to be in safe and solvent circumstances, and purchased the flour for the purposes of his general trade. The defendants then proved, that the note given to them by Wright, was for part of the flour shipped as aforesaid to Martinique; and that Wright, at the same time, purchased more flour [**10]  than the brig would carry; that the surplus was returned to the defendants, and the note was given for the nett amount actually received from them by Wright. The court gave the direction as prayed by the plaintiffs. The defendants excepted.

3. The defendants then offered to read in evidence, a paper purporting to be the record of certain proceedings of a court of justice, called the court of First Instance at Saint Pierres in the Island of Martinique, of which the following is a true translation, viz. "We, John Amans Astorg, President of the tribunal of the First Instance, sitting at St. Pierres, Island of Martinique, certify, that the signatures attached unto the documents hereto annexed, which are--

1st. Copy delivered by Borde, chief clerk of the tribunal of our ordinance, of the 6th October 1810, giving permission to Messrs. B. & J. Ellicott, Andrew Ellicott, Thomas Ellicott, and Owings and Cheston, represented by Benjamin Noland, to seize, stop, and put a guard on board the brig Hunter.

2d. Original attachment for the seizure and arrest made in the hands of Messrs. Silas Marean and Tuttle, by the sheriff Dejean, 6th October 1810.

3d. Certified copy by Fronzat,  [**11]  attorney in the county in this Island, of an act of agreement and security relative to the seizure of the flour, signed C. B. Tuttle, Thomas T. Gantt. & Vachier, the 6th October 1810.

4. Original petition presented to us in the name of the said Messrs. Ellicotts, and associates, 9th October 1810, which was duly notified the same day by the constable Touin, to Mr. Samuel Wright, legally represented in this cause by the consignee of the cargo.

5th. Copy of the interlocutory judgment of the 9th of October 1810, notified by the constable Bruin.

6th. Copy of another preliminary judgment of the 10th October 1810, notified by the constable Rives

7th. Copy of the process verbal of the viewers, proving the identity of the flour seized with that sold by the plaintiffs to Mr. Samuel Wright, notified by the constable Bruin.

8th. Copy of the definitive judgment of the 11th October 1810, at the end of which is the security of Mr. Eml. Gervais, both notified by the constable Fayola.

9th. The copy of an act of opposition signed by Villette, attorney of, and notified by the constable Rives, for Messrs. Nicholson and Williams, represented by Mr. Benjamin Nicholson their [**12]  agent.

10th. The legal document, (la piece legale,) duly notified by the constable Bruin the 16th October 1810, containing first--A translated copy, (by the sworn interpreter,) from the English language, of a letter addressed the 30th August 1810, by Messrs. Joseph H. Nicholson and Williams, and postscripted by Samuel Wright, to Mr. Silas Marean, which contains the confirmation of the powers as well of Mr. Marean as agent of Mr. Wright, as of Mr. Benjamin Nicholson as agent of Mr. J H. Nicholson and N. F. Williams. Secondly--A translated copy by the said interpreter of the deed of conveyance made by the said Samuel Wright to the said Nicholson and Williams the 24th August 1810. Thirdly and lastly--Copy of the petition of the said Nicholson and Williams, by third opposition, (Tierce opposition) against our judgment of the 11th October 1810, presented by De Bernard, attorney--The whole notified in the name of the said Nicholson & Williams.

11th. Copy of the definitive judgment of the 16th October 1810, notified the next day, the 17th, by the constable Berharbe--Are truly the signatures of Borde, chief clerk of the court, of Pronzat, De Bernard and Villette, attorneys in the [**13]  courts of this Island, of Touin, Dejean, Bruin, Rives, Fayola and Berharbe, constables in the court of St. Pierres, all in their said functions, and that full and entire faith and credit ought to be and are given thereto, as well in courts of justice as thereout. Given forth at our Hotel at St. Pierres, Martinique, 25th November 1811.

Astorg.

Sealed the same day.

(Seal) Le Maistre, ste. Isle."

Here follows the certificate of the governor, &c. of the Island of Martinique, (in English,) dated the 26th of November 1811, with the seal of the government of Martinique affixed, and signed,

"Charles Wale."

"No. 1. Order to seize, stop, and put a guard on board the brig Hunter, Capt. Yearly, 5th October 1810.

Upon the petition presented to the tribunal of the first instance, sitting at St Pierres, Martinique, by Messrs. Benj. & James Ellicott, and associates, the following has been extracted: Seen and permitted to form in every place where it may be necessary, opposition to the departure of the American brig Hunter, captain Yearly, now in this road; and in case it becomes necessary, to establish one or more Gend'armes as a guard on board, at the risk, peril [**14]  and fortune, of whomsoever it may belong; as also permitted to make seizure, arrest or opposition, and even levy execution for the preservation of all the rights of the just owners, and these presents shall be deposited among the minutes of the court. Commanded, &c. at St. Pierres, 5th October 1810.

Signed,

Astorg,

Coll.     Borde.

Sealed.

Borde.

"No. 2. Seizure made in the hands of Messrs. Marean and Tuttle, the 6th October 1810.

In the year 1810, the 6th of October, in virtue of the order of Mr. The President of the Tribunal of the First Instance of this city, under date of the 5th instant, signed and sealed in legal form, upon the request of Messrs. B. & J. Ellicott, Andrew Ellicott, Thomas Ellicott, and Owings & Cheston, represented by Mr. Benjamin Noland, domiciliated in the office of Mr. Pronzat, sworn attorney in this Island of St. Pierres, I, Joseph Dejean, admitted constable, (matriculated,) recorded in the tribunal of the first instance in this city, there residing, and here undersigning, notified and left this copy of attachment with Mr. Silas Marean, represented by Mr. Tuttle personally, in speaking to the latter in his house that he [**15]  might not be ignorant of the declaration that I seize, arrest provisionally in his hands, all that he might have or owe, will have or will owe hereafter, to Mr. Samuel Wright, forbidding him in the name of the king and justice, to let escape or disseize himself from, until it shall be otherwise decided by justice, under pain of answering in his proper and private name for the sum of $ 6794, principal, exclusive of costs and interest, requiring him to retain the foregoing in his possession, and moreover to make a positive declaration on the present attachment, and support it by oath should need require it; and I have to the said Silas Marean, represented by Mr. Tuttle, to him, speaking as before recited, declared that summons will be given him in time and place, of all which this is proof.

Signed,     Dejean.

"No. 3. Agreement with C. B. Tuttle, and security of Mr. Thomas T. Gantt and Vachier, upon the seizure of the flour, 6th of October 1810.

This 6th of October 1810, I the undersigned Caleb B. Tuttle, American citizen, and partner and representative of Silas Marean, acting as well in my personal name, as agent of the said Silas Marean, considering that the brig [**16]  Hunter, captain Yearly, the cargo of which is to us consigned by Mr. Samuel Wright of Baltimore, was, on its arrival yesterday in this road, seized and arrested at the suit of Messrs. B. & J. Ellicott, A. Ellicott, Thomas Ellicott, and Owings & Cheston of Baltimore, represented by Mr. Benjamin Noland, and that guards have been put on board in virtue of the orders of Mr. the president of the civil court of this city, under date of yesterday, in order to prevent the landing of the flour composing the cargo, and particularly of 653 barrels of flour sold by the reclaimants to the said Samuel Wright; and considering moreover the seizure and arrest made in our hands this day by the said claimants, to the prejudice of the said Samuel Wright, as also that the said cargo may be placed so as to prevent any unfortunate accident on board, and to profit of the favorable moment for the sale--declare, as well for myself as for the said Silas Marean, I render myself guarantee and responsible to the said B. & J. Ellicott, A. Ellicott, T. Ellicott, and Owings and Cheston, of Baltimore, represented here by the said B. Noland, for the entire value of all the rights of the claimants, and all the just and [**17]  founded claims which they can have legally, and exercise against the said Samuel Wright, by reason of which they have made the above mentioned seizure, and that only unto the amount of the nett proceeds of the cargo of the said brig Hunter, to us consigned, after the sale thereof shall have been made; promising and obliging myself, as well for myself as for the said Silas Marean, to pay to the said claimants, or their agents or representative, the amount of the sum which shall be admitted to be to them due by the said Samuel Wright, unto the amount of the nett produce of the said cargo; provided the said sum shall prove sufficient to pay what shall be due, immediately as we shall be authorized to make the said payment by order of justice. And we, Thomas T. Gantt and Antoine Vachier, both established merchants at St. Pierres, after having taken cognizance of the above engagement entered into, as well by Mr. Tuttle as by Mr. Silas Marean represented by the said Mr Tuttle, declare that we render ourselves personally responsible and guarantees for the execution of the said engagement, jointly and severally, with the said Silas Marean and C B. Tuttle, for which we bind all our estates present [**18]  and to come Done at St. Pierres, Martinique, the said 6th day of October 1810.

Signed,

C B. Tuttle, (Seal.)

Thos. T. Gantt, (Seal.)

Vachier, (Seal.)

Signed and sealed in presence of (Signed) Pronzat Degault.

Certified to be conformable to the original remaining in my possession. St. Pierres, 10th October 1819.

Pronzat.

"No. 4. Petition of Messrs. Ellicott, &c. to the judge of St. Pierres, against Samuel Wright, legally represented by Messrs. Marean & Tuttle, consignees of the cargo of the brig Hunter, 9th October 1810.

To Mr. the honourable the president of the court of the first instance, sitting at St. Pierres, Martinique. The humble petition of Messrs. Benja. & James Ellicott, Andrew Ellicott, Thomas Ellicott, and Owings and Cheston, all merchants at Baltimore, represented in the colony by Mr. Benja. Noland, at present at St. Pierres, represent Sir, that Mr. Samuel Wright, their fellow-citizen, had formed the project of a fraudulent bankruptcy, in which he was willing that the petitioners should lose something. For which purpose he transported himself to them the 14th and 15th of the month of August last, and bought the quantity of 653 [**19]  barrels flour for the sum of 6794 dollars. This flour was afterwards freighted on board the brig Hunter, captain Yearly, and expedited for Martinique. A few days afterwards Mr. Samuel Wright suspended his payments, and made a failure, after having made to certain persons, fictitious creditors, a fraudulent conveyance of almost all his property. These culpable underhand dealings, which the laws punish so severely, have given to the petitioners the assurance that Mr Samuel Wright intended to despoil them of the price of their flour, and that he would inevitably have executed his design, if they had not exerted themselves to counteract him. In consequence they have dispatched a light vessel, with Mr. Noland their agent, to pursue the vessel which carried away their flour, and have had the happiness that Mr. Noland should arrive at St. Pierres before the brig Hunter, and that on her arrival in port he has detained the vessel, and obtained permission to seize the flour, &c. &c. Mr. Tuttle, partner of Mr. Marean, consignee of the vessel, and agent or representative of Mr. Samuel Wright in this colony, in order to obtain the release of the flour, has given security, and obliged himself to [**20]  pay the claim of the petitioners immediately, as by justice the payment shall be ordained. To obtain this end the petitioners request, that it will please your honour to permit them to summons to an audience extraordinary immediately, Mr. Samuel Wright of Baltimore, proprietor of the cargo of the brig Hunter, in the persons of Messrs. C. B. Tuttle and Silas Marean, consignees of the said cargo, to come and hear themselves condemned to pay the petitioners the sum of $ 6794, the price of the flour by them to him sold, and composing the cargo of the said brig Hunter, with interest, &c. &c. which shall be executed provisionally, &c.--In consequence decree, that the petitioners receive the said sum of Messrs Tuttle and Marean out of the proceeds of the sale of the said cargo, which being done, their obligation shall be discharged, which shall be executed, &c. under all reservation. This is justice.

Pronzat.

Seen, &c. permitted, summoned as requested, ordained, &c. at St. Pierres, Martinique, 9th October 1810.

Astorg.

In the year 1810, on the 9th October, at the request of B & J. Ellicott, &c. merchants at Baltimore, represented in this colony by Mr. B. Noland, at present [**21]  in this city of St. Pierres, for which he is domiciliated at the office of Mr. Pronzat their attorney, situated in this city of St. Pierres, I John Baptiste Touin, constable, admitted and registered in the court of the first instance of this city, there residing, undersigned, notified, and gave a copy of a translation of the different pieces of requests and orders before mentioned, and of the present summons, to Mr. Samuel Wright of Baltimore, proprietor of the cargo of the brig Hunter, in the person of Mr. C. B. Tuttle & Silas Marean, consignees of the said cargo, in speaking to a clerk domiciliated, that they might not be ignorant of a citation to appear this day, the 9th instant, at 11 o'clock in the morning, at the court-house of this city, before Mr. the president of the said court, to see judged to the claimants the object of their demand contained in their petition. All of which I have performed.

Touin.

"No. 5. Interlocutory judgment between Messrs. Ellicott's, &c. and Mr. Samuel Wright, legally represented by Messrs. Marean & Tuttle, 9th October 1810.

Extract from the register of the clerk's office of The Tribunal of the First Instance, sitting in the city of [**22]  St. Pierres, Island of Martinique, on Tuesday the 9th of October 1810, in the morning, at an extraordinary hearing before us, John Amans Astorg, president of the tribunal of the first instance, sitting in the city of St. Pierres, Island of Martinique, between Messrs. B. & J. Ellicott, &c. and Owings & Cheston, merchants of Baltimore, represented in this city by Mr. Benjamin Noland. plaintiffs, by petition notified by Touin, this day appearing by Mr. Pronzat, attorney of one part, and Mr. Samuel Wright, represented in this Island by Mr. Silas Marean and C. B. Tuttle, defendant, appearing by Mr. Villette, attorney on the other part. Parties heard, and the attorney of the king in his conclusions on the petition of Mr. Villette, and by consent of Mr. Pronzat, we order that the documents be exhibited upon which their demands are founded, which shall be communicated in the original, upon a receipt being given in due form. Costs suspended, which shall be executed notwithstanding appeal, on giving security, which shall be received before us in the accustomed manner. Done and given forth by us, the president of the aforesaid tribunal, at St. Pierres, Martinique, the day and year aforesaid,  [**23]  and thus signed on the register.

Astorg,

Borde."

Here follows a certificate of the preceding having been notified, and a copy delivered, to Mr. Samuel Wright, represented by Messrs. Marean & Tuttle, to appear on the 10th October, at 10 o'clock in the morning at the courthouse, &c. and signed (by a constable, &c.) Bruin.

"No. 6. Other preparative judgment between Messrs. Ellicotts &c. and Mr. Wright, 10th October 1810.

Extract from the register of the clerk's office of The Tribunal of the First Instance, sitting in the city of St. Pierres, Island of Martinique, on Wednesday the 10th of October 1810, in the morning, at an extraordinary audience before us, John Amans Astorg, president of the tribunal of the first instance, sitting in the city of St. Pierres, Island of Martinique, between Messrs. B & J Ellicott, A. Ellicott, T. Ellicott, and Owings & Cheston, merchants of Baltimore, represented in this city by Mr. Benjamin Noland, plaintiffs, by petition notified by Train the 9th of this month, and in execution of the appointment of the said day, appearing by Mr. Pronzat, attorney of one part, and Mr. Samuel Wright, represented in this Island by Mr. S. Marean and [**24]  C. B. Tuttle, defendant, appearing by Mr. Villette, attorney, of the other part. Parties heard, and the attorney for the king in his conclusions, we order, before final judgment, that by viewers agreed on or named by the judge in the common form, verification shall be made of the identity of the flour claimed, with that which was sold by the plaintiffs, and that by a comparison of the brands which shall be presented by Mr. Pronzat, with that on the barrels, which shall be made report of by a process verbal, the parties present, or duly notified, in order, upon the same being deposited and reported, judgment of what is right may be rendered. The court ratifies the appointment respectively made by the parties of inspectors of Mr. William Parsons & Hooper, who are dispensed from an oath, and authorized to name a third, who is also dispensed from oath. Costs reserved, which shall be executed notwithstanding appeal, on giving security, which shall be received before us in the accustomed manner. Done and given forth by us, the president of the aforesaid tribunal, at St. Pierres, Martinique, the year and day aforesaid, and thus signed on the register.

Astorg,

Borde.

We appoint [**25]  Thursday the 11th of this month, at 8 o'clock in the morning, to proceed in the operation ordered.

Wm. Parsons.

St. Pierres, 10th October 1810."

Here follows a certificate signed by J. Rives, constable, &c. notifying that he had delivered a copy of the preceding appointment and notification of the day, &c. to Mr. S. Wright, in the person of Mr. Silas Marean & C. B. Tuttle; also a copy to Mr. Villette, their attorney, to appear, &c.

"No. 7. Process verbal of the inspectors, proving the identity of the flour the 11th October 1810.

Extracts from the minutes of the clerk's office of the tribunal of the first instance, sitting at St. Pierres, Island of Martinique.

We the undersigned, named to verify the flour arrived from Baltimore by the brig Hunter, captain Yearly, declare, that we transported ourselves this day at 8 o'clock in the morning, to the warehouse of Mr. Garout, where the said flour is deposited. We there discovered 653 barrels, marked for the most part J. Ellicott, E. Ellicott, B. Ellicott, and some other of the mark U. L. M. and by the representation to us made by Mr. Pronzat, attorney of the Messrs. Ellicotts, of a note of the marks of 653 barrels,  [**26]  we have ascertained the identity of it with those on the barrels. St. Pierres, 11th October 1810.

Signed

W. Hooper,

W. Parsons."

Ordered that the foregoing be deposited in the minutes of the clerk's office of the tribunal of the first instance, thence to be delivered to who may have occasion to require it. St. Pierres, Martinique, 11th October 1810.

Signed

Astorg,

Coll.     Borde."

Here follows a certificate of the preceding having been notified to Mr. Wright, &c. to appear, &c. as herein before stated.

"No. 8. Definitive judgment.

To all present, and to whom these presents shall come, Greeting. The tribunal of the first instance, sitting in the city of St. Pierres, in the Island of Martinique, has rendered the following judgment, between the Messrs. Benjamin & James Ellicott, Andrew Ellicott, Thomas Ellicott, and Owings & Cheston, merchants of Baltimore, represented in this Island by Mr. Benjamin Noland, by power of attorney, plaintiffs, by a petition answered the 9th of this month, and in execution of the appointment of the tenth, appearing by Pronzat, attorney on the one part, and Mr. Samuel Wright, represented by Mr. Silas Marean [**27]  & C. B. Tuttle, defendant, summoned this day, appearing by Mr. Villette, attorney, on the other part. Parties being heard, and also the King's attorney, the court, considering the result of the process verbal of the verification reported of the identity of the flour with that inspected by the arbiters, has condemned and does condemn the defendant to pay to the plaintiffs, in round dollars, the sum of $ 6794, being the price for which they have sold him the flour, and comprising the cargo of the brig Hunter, which sum shall be accounted to them by the Messrs. Tuttle & Marean, out of the proceeds of the sale made by them of the cargo; provided nevertheless, that the plaintiffs shall give them bonds and sufficient security, to be accepted by them, for the return at Baltimore of the bills which they hold of Mr. Wright for the amount of the said flour, which bills shall be, in consequence of the payment made in execution of these presents, null and of no value against the defendant. Which being done shall release them from all demands therefor from all persons whatsoever. Besides, the defendant is condemned to pay interest on the said sum, counting from the day of the demand, and all costs,  [**28]  which shall be executed notwithstanding any appeal under the same security. Commanded and ordered to all constables, who are required to put in execution this judgment; and for that purpose are authorized to resort to summonses, intimations, and other acts, which may be necessary when thereto legally required. In testimony whereof the present judgment has been signed by the president of the tribunal, and by the clerk. St Pierres, Martinique, Thursday the 11th of October 1810, in the morning, at an extraordinary audience.

(Signed on the Record,)

Borde, Clerk, and

Astorg, President.

Coll.     Borde.

Sealed at St. Pierres, Martinique, the said day.

Le Maistre, Scte. Isle.

I declare in execution of the foregoing judgment, that I render myself security for the return of the bills in America. St. Pierres, 11th October, 1810.

Em. Gervais."

Here follows a certificate of the foregoing being notified to Mr. Wright, &c.

"No. 9. Act of opposition by Joseph H. Nicholson & Nathaniel F. Williams, represented by Benjamin Nicholson, 12th October 1810.

At the request of Joseph H. Nicholson & Nathaniel F. Williams, merchants of Baltimore, represented [**29]  by Mr. Benjamin Nicholson, at present in this city, be it signified and declared to Mr. Tuttle, merchant of St. Pierres, as well in his own name, as consignee of the cargo of the brig Hunter anchored in this road, that the claimants formally oppose the said Tuttle's paying or letting escape out of his hands, into any other persons whatsoever, the funds which he now has, or shall have, belonging to Mr. Samuel Wright, notwithstanding any judgment which may have been obtained by Messrs. Ellicotts & Owings, merchants of Baltimore, calling themselves creditors of Mr. Samuel Wright, under pain of paying twice, and also all costs, losses, damages and interest. With declaration that the plaintiffs will prosecute at law, immediately, Messrs. Ellicotts, and all others that may be necessary, under all reserves and protestations which he is entitled to; all which I have performed.

De Bernard.

The foregoing opposition was notified by a summons of Bruin the 12th of this month, conformably to copy.

Villette."

Here follows a certificate of notification to Messrs. Ellicotts, &c.

"No. 10. Containing, 1st. Letter of Nicholson & Williams, and S. Wright, to S. Marean. 2d. Deed [**30]  from Wright to Nicholson & Williams. 3d. Petition of Nicholson & Williams to the judge of St. Pierres, dated 16th of October 1810.

1st. To Silas Marcan, Esquire. St. Pierres, Martinique,

Baltimore, August 30, 1810.

Sir--Mr. Benjamin Nicholson, the bearer, goes out with full powers to take possession of the brig Hunter, and her cargo, lately consigned to you by Mr. Samuel Wright. He carries with him the deed of indenture, duly authenticated, which conveys the property to Nathaniel F. Williams and myself. For your agency in the business, Mr. Nicholson is instructed to allow you your regular commission. I understand that an agent is going out for the purpose of attaching this property for the use of Messrs. Ellicotts, and others; but Mr. S. Wright's notes to them will not be due until November, and they can lay no attachment until that time, even if the property still continued to be Wright's. From the intimacy between your brother, T. Marean and N. F. Williams, we are induced to hope that you will use all exertions for our interest. If the property is sold when Mr. Nicholson arrives, you will account with him for the proceeds.

I am, Sir,

Yr. Obt. Servt.

Joseph [**31]  H. Nicholson,

For self & N. F. Williams.

Sir--You will please to conform to the above instructions, and oblige your ob't. serv't.

Saml. Wright."

2d. Here follows the deed from Samuel Wright to Joseph H. Nicholson and Nathaniel F. Williams, dated the 24th of August 1810, stating that the said Nicholson & Williams had endorsed sundry promissory notes for the said Wright, to the amount of $ 22,450, endorsed by the said Nicholson, and $ 8000 endorsed by the said Williams, and to secure, save harmless, and keep indemnified, the said Nicholson & Williams, as endorsers, the said Wright conveyed to the said Nicholson & Williams, a tract of land called Shatton, lying in Queen-Anne's county; also all that brig or vessel called The Hunter, together with her tackle, &c. and all and singular the cargo, &c. and all profits and proceeds thereof, also ten shares of stock in the Union Bank of Maryland, also twenty shares in the Union Manufacturing Company, &c. &c. in trust, that the said Nicholson & Williams shall take possession of the said property, and when proper sell, &c. and the proceeds to apply to the discharge of all and every of the said promissory notes, and the balance,  [**32]  if any, pay over to the said Wright, &c. Acknowledged before two justices of Baltimore county on the 24th of August 1810, and recorded in the records of the said county on the 31st of August 1810.

No. 10 continued. 3d. "To Mr. The President, &c. The humble petition of J. H. Nicholson and N. F. Williams, merchants of Baltimore, represented by Mr. Benj. Nicholson, now in this Island, represent, Sir, that the brig Hunter sailed from Baltimore, and has arrived and moored in this road, with a cargo, the sale of which has been confided to the care of Silas Marean & C. B. Tuttle. The arrival of the brig Hunter was followed by that of Mr. B. Noland, who says he is the representative of the commercial houses of Messrs. B & J. Ellicott, Andrew Ellicott, Thomas Ellicott, and Owings & Cheston, of Baltimore. Mr. B. Noland hastened to set up a demand against Mr. Samuel Wright, represented by Mr. Silas Marean and C. B. Tuttle, in order to have a privilege on the proceeds of the cargo of the aforesaid brig. The means which were resorted to by the Messrs. Ellicotts, &c. were founded on the fact of their having sold the flour composing the cargo to Mr. Wright. A sentence of the court, given the [**33]  11th of October inst. pronounces thus--"seeing what results from the process verbal of the verification reported concerning the identity of the flour sold by the plaintiffs, with that inspected by the arbiters, the court has condemned, and does condemn, the defendant, Samuel Wright, to pay to the plaintiffs, Messrs Ellicotts, &c. in round dollars, the sum of $ 6794, for the price of the flour which they have sold him, and composing the cargo of the brig Hunter; which sum shall be accounted to them by the Messrs. Tuttle & Marean, out of the proceeds of the sale by them made of the cargo, on the plaintiffs giving to them good and sufficient security that they will return at Baltimore the notes given by said Samuel Wright, for the price of the said flour," &c. Without entering on the discussion of the means which has induced the court to pronounce thus; without contesting the identity of the flour forming the cargo of the brig with that of the flour sold by Messrs. Ellicotts, &c. or pretended to have been sold by them, we find it inadmissible in the demand which they have set up. The Messrs Ellicotts, &c. had not decided to claim, if they had not believed the the flour was the property [**34]  of Mr. Wright, and had never ceased to belong to him. The court, in rendering the sentence of the 11th of October, had thought the same; but this was all a chimera; in making to cease this illusion, we will make cease the right of Messrs. Ellicotts, &c. We will prove to them that they have no pretence on the cargo of the brig Hunter; that they have not, in a word, any privilege or claim. The cargo of the brig Hunter is not the property of Mr. Samuel Wright. Behold, by this reason, only all the rights of Messrs. Ellicotts, &c. are dissipated--vanished. A deed made at Baltimore, under date of the 24th August last, between Samuel Wright and the petitioners, has transferred to the petitioners the right, not only of the cargo, but of the brig also. This deed is clothed with all the forms necessary at the time of its being made; it has invested the petitioners with the objects sold. Mr. Wright has ceased to be proprietor, and in admitting to Messrs. Ellicotts, &c any right whatsoever to the cargo, this right ceased on the sale and transfer made to the petitioners. They present themselves this day with this deed, sanctioned by the authorities of Baltimore. They come and demand the execution [**35]  of this deed--They come and claim the property which has been transferred to them. They exercise the right which they certainly have, and which no one contest with them. The law which the Messrs. Ellicotts, &c. have no doubt invoked to sustain their demand, is against them; this law does not give them the privilege, but in the case where the object seized shall be still in the possession of the debtor--shall be still his property. But Mr. Wright is no longer proprietor--He has sold it. The objects are no longer in his possession--He has divested himself of it in order to put it in possession of the purchaser. The former sellers have not then any privilege--They have no claim on that which is no longer the property of their debtor. If the Messrs. Ellicotts, &c. have yielded their confidence to Mr. Wright, the petitioners cannot be responsible for the consequences--let them address themselves to him to make him pay them the sum he owes them, but let them cease to seek a pledge from the property of the petitioners. Already by a judgment you have authorized the petitioners to seize and stop the cargo in the hands of Mr. Tuttle. You have now only to annul the pretensions of the Messrs.  [**36]  Ellicotts, &c. and this act is easy. The circumstances which militated in favour of the petitioners have been established; they do not leave any doubt of the legitimacy of their claim. But a sentence of the court has pronounced in favour of the Messrs. Ellicotts, &c. a privilege on the property of the petitioners. The court, as we have already said, has participated in the same mistake with the Messrs. Ellicotts &c. It thought that the cargo was still the property of Mr. Wright; it has pronounced under this belief. The contrary being demonstrated, it will hasten to correct its judgment, and will render justice to whom it belongs. The means of a third opposition is open to the petitioners; they cannot too hastily seize it in order to put the court in a condition to pronounce on the subject of their claim. Having examined this, will it please you to authorize your petitioners to make opposition to the sentence which they make known and declare, to form the objection to the execution of the sentence which was obtained by misrepresentation of the 11th instant. In consequence, permit them to call before the court immediately--First, the Messrs. Benjamin and James Ellicott, &c. merchants [**37]  of Baltimore, represented by Mr. Benjamin Noland, now in this city, stating himself as acting by their power of attorney, domiciled at Mr. Pronzat, then attorney. Secondly, Mr. Samuel Wright, represented by Mr. Silas Marean & C. B. Tuttle, merchants in this city, domiciliated at Mr. Villette's, his attorney, to come, see and receive, the petitioner's third opposing to the execution of the sentence--See that the said sentence be declared null and without effect, and as if not rendered--See the parties remitted to the same condition in which they were before the same was rendered, and pronounced by a new judgment; the Messrs. Ellicotts, &c. see themselves declared purely and simply not capable of supporting their demand, the aim of their expectations, at all events unfounded--See themselves nonsuited and condemned in all the expenses; saving and reserving to the petitioners all their rights against Messrs. Marean & Tuttle, to exercise them as they may find them convenient, to obtain the account and the produce of the cargo of the brig Hunter, as being the sole and only proprietors under all reservations, and saving also all other rights, actions and conclusions, which shall be executed,  [**38]  &c. This is justice.

Signed     De. Bernard.

Seen, &c. recognized the third opposition, and permitted to be summoned to the end requested, commanded, &c. St. Pierres, 16th October 1810.

Signed,

Astorg,

Copy     De Bernard."

Here follows a certificate of notification by the constable to Messrs. Ellicotts, &c. of the letter, deed, &c. to appear the 16th October 1810, before the president, &c.

"No. 11. Definitive judgment, &c. 16th October 1810.

To all present, and to whom these presents shall come, greeting. The court of the first instance, sitting in the city of St. Pierres, Island of Martinique, has rendered the following judgment between Messrs. J. H. Nicholson & N. F. Williams, merchants at Baltimore, represented by Mr. B. Nicholson, now in this Island, plaintiffs, by a petition answered this day in third opposition to the execution of the sentence of the 11th of this month, appearing by Mr. De Bernard attorney of the one part, and Messrs. B. & J. Ellicott &c. merchants of Baltimore, represented in this Island by Mr. B. Noland, under power of attorney, defendants, appearing by Mr. Pronzat attorney of the other part. And also Mr. Samuel [**39]  Wright, represented in this Island by Mr. Silas Marean & C. B. Tuttle, merchants, and his consignees, appearing by Mr. Villette, attorney, defendant, summoned to this day, of the other part. The parties being heard, and the king's attorney in his conclusions--The court has taken cognizance of the declaration of Mr. Villette, that conformably to the instructions which he has received from Mr. Samuel Wright, Mr. Tuttle adheres to the conclusions taken by the plaintiffs. Wherefore, the court considering the epoch of the sale of the flour by the Messrs. Ellicotts, &c. and that of the deed consented to by Mr. Wright, for the benefit of Mr. Nicholson, the one on the 15th, and the other on the 24th Considering that the said deed announces that it is only a deposit for the payment of the notes which have been or may be given by the said Nicholson to Wright, that thus there has been no definitive transfer of the property. Considering besides, the quality of Mr. Nicholson, relatively to Mr. Wright, that of relationship. Considering, in consequence that the flour has never ceased to be for the benefit of Mr. Wright, and that the privilege of the reclamation is yielded to the seller, when he finds [**40]  the merchandise sold in the possession of the purchaser, independently of whatever might result from the failure of Mr. Wright. The court has cast, and does cast, the plaintiffs from the reclamation--condemns them in a fine of 150 livers, to be applied according to law; and also in all costs of suit--which shall be executed, notwithstanding any appeal, in giving security, which shall be received before us in the customary way. Commanded and ordered to all constables who are required to put in execution this judgment, and for that purpose are authorized to resort to summonses, intimations, and other acts, which may be necessary when thereto legally required. In testimony whereof, the present judgment has been signed by the president, and by the clerk. St. Pierres, Martinique, Tuesday the 16th of October 1810, in the morning, at an extraordinary audience. Signed on the register, Borde, clerk, and Astorg, president.

Coll.     Borde.

Sealed at St. Pierres, Martinique, the said day.

(LS)     Le Maistre, Ste. Isle."

Here follows a certificate of notification to Messrs. Nicholson & Williams, S. Wright, and their attorneys, and agents, &c.

The defendants also [**41]  proved, by a witness skilled in the French laws, and in the proceedings of the French tribunals, that the said paper is authenticated in the manner used and authorized in the territories and tribunals of France. That the signature "Astorg," subscribed to the attestation on the first page of the said paper, is the signature and hand-writing of Jean Amans Astorg, who, at the time when the said attestation bears date, was chief judge or president of the said court, in the attestation and paper mentioned, and that the seal affixed to the attestation in the first page, is precisely similar to the seal used at the time in Gaudaloupe, as the colonial seal of the latter Island; for which reason the witness believed it to be the colonial seal at the time used in Martinique for the authentication of judicial proceedings, and other public acts and papers; but that he had no knowledge of the colonial seal of Martinique at that time; and that at that time the courts of Martinique had no particular or appropriate seals for their own proceedings, but used the colonial seal for all purposes when a seal was necessary. The plaintiffs proved by the said witness, that according to the laws of France,  [**42]  and the constitution and practice of French courts, and of the court of the first instance at Saint Pierres, in Martinique, no part of the proceedings in any case is lodged with the register of the court, or recorded, except the judgment of the court itself, and such acts as were done by its express order, such as the process verbal, which it ordered to be made and returned, and certificates of commissioners appointed by it, to ascertain and report any fact; but that the petitions or claims of the parties, the orders for citation founded on them, the citations made in pursuance of such orders, the answers of the opposite party, the documents produced by either party in support of the claim or defence, were considered as the private papers of the parties respectively, and were not lodged in court, or recorded, but remained in the possession of the advocates of the parties respectively, by whom the originals were produced and certified under their hands, whenever it became necessary to use those papers; and that in such cases the truth or solemnity of those signatures was attested by the president of the court, under the colonial seal. The plaintiffs then objected to the reading of the [**43]  said papers, or any part thereof, as evidence. But the court over-ruled the objection, and permitted the paper, and every part thereof, to be read in evidence by the defendants. The plaintiffs excepted.

4. The plaintiffs then produced Benjamin Nicholson, the person mentioned in the said paper and proceedings in Martinique, and offered to swear him as a witness, to prove, that when he went to Martinique to obtain possession of the cargo of the brig Hunter, he had no authority of any kind, or instructions, from the plaintiffs, or either of them, to institute any legal proceeding whatever on their behalf in the Island of Martinique, or to appear for them in any such proceeding, or in any court, further than such authority may have been given him in and by a certain letter addressed by Joseph H. Nicholson, one of the plaintiffs, to Silas Marean, of which letter, a paper purporting to be a true copy, is contained in the paper proceedings aforesaid; and also, that as soon as the proposed witness returned to Baltimore from Martinique, and communicated to the plaintiff, Joseph H. Nicholson, the steps which he the proposed witness had taken about the said cargo in the said court of first [**44]  instance at Saint Pierres, the said plaintiff disapproved those steps and disavowed them. But the defendants objected to this evidence; and the court sustained their objection, and refused to permit the evidence to be given to the jury. The plaintiffs excepted.

5. The plaintiffs then prayed the opinion of the court, and their direction to the jury, that the judgment and proceedings in Martinique do not affect the right of the plaintiffs to recover in this action. And this opinion the court gave. The defendants excepted. Verdict and judgment for the plaintiffs, for $ 803 40. The plaintiffs and defendants both appealed to this court, but the former afterwards dismissed their appeal.  

DISPOSITION:
AFFIRMED.  

HEADNOTES:

S W purchased a quantity of flour from O & C. for the payment of which he gave them his promissory note, on the 10th of August 1810, payable 85 days thereafter, and he shipped he flour to Martinique on the 18th of August 1810 consigned to S D, where the vessel arrived on the 5th of October. On the 24th of August, while the vessel was prosecuting her voyage, S W assigned the bill of lading of the flour to N and W, to indemnify them as his endorsers on certain promissory notes, which they had paid, being more than the value of the flour. S W, when he assigned the bill of lading to N & W, was wholly insolvent, and was discharged as an insolvent debt or under a special act of insolvency passed in November 1810, but he was in good credit when he purchased the flour. About the last of August O & C sent their agent to Martinique to seize the cargo of the vessel, for the purpose of securing the debt due to them He arrived there before the vessel, and caused a suit to be instituted in the court of St. P, and when the vessel arrived the cargo was seized and condemned for the amount due to O & C. After this B N, stating himself to be the agent of N & W, instituted counter proceedings in the said court, to which N & W were made parties, and that court definitively decreed a sale of the cargo for the payment of the claim of O & C, the amount of which was paid by S D in pursuance of the said decree, to the agent of O and C, who paid it over to them--Held, that it was competent for the agent to give evidence that the money he received from S D was paid in pursuance of the decree of the court of St. P--Held also, that N & W were entitled to recover from O & C, in an action for money had and received, the sum of money so by them received--Held also, that the proceedings of the court of St. P. were sufficiently authenticated to be read in evidence, it being proved, by a witness skilled in the French laws and in the proceedings of the French tribunals, that they were authenticated in the manner used and authorized in the territories and tribunals of France. The signature thereto of the chief judge of the said court being proved, and the seal affixed thereto being proved to be similar to that used at the same time as the colonial seal of another French island--Held also, that N & W could not offer in evidence by B N, that he had no instructions from them to institute any proceeding whatever on their behalf in Martinique, and that on his return, and communicating to them what he had done in the court of St. P they disapproved and disavowed his acts--Held also, that the judgment and proceedings in the court of St. P. do not affect the right of N & W to recover from O & C the said sum of money by them received of their said agent.  

COUNSEL:
Martin, T. Buchanan and Winder, for the Appellants. 1. On the first bill of exceptions. The court below refused to permit the defendants to give in evidence that the money was received in pursuance of a decree of the court of Martinique. The evidence was offered to show, that the money was so received that assumpsit would not lie for it. It was not intended to prove the record or the judgment by the admission of the evidence; but it came in incidentally, and it was not necessary to produce [**45]  the judgment under which the money was received. If the witness was competent to prove he received the money, he was competent to prove from whom and on what account he received it. It was, and may be important for the defendants to prove, that the money was paid under judicial process; and if they could have been permitted to give such proof, then the plaintiffs would have been boand to produce the judgment, and to prove it to have been erroneous.

2. On the second bill of exceptions. The court below referred a question of law to the jury. On the 24th of August 1810, Wright being insolvent, and unable to pay his debts, made an assignment of his property to the plaintiffs. They referred to the act of 1805, ch. 110, s 9, which declares, that any conveyance made to any one by an insolvent debtor, is an undue and improper preference; and the act of 1807. ch. 55, which declares what shall be an undue and improper preference. Manro vs. Gittings & Smith, 1 Harr. & Johns. 492. If Wright was insolvent on the 24th of August 1810, the deed was not effectual, and the plaintiffs cannot support this action. It was giving an undue and improper preference to some of his creditors. It was unequitable [**46]  and unjust, and a fraud as to other creditors. If the plaintiffs are not entitled to recover equitable and fairly against the defendants, they cannot support this action. The agent of Wright paid the money voluntarily to the agent of the defendants, on a full disclosure of all circumstances, and the plaintiffs have no right to call on them to refund. An agent is answerable to his principal, so that if the payment was not properly made, the agent is answerable to Wright, or his assignees. It is not stated that the property was seized by the defendants, nor that Tuttle did not pay the money voluntarily. If the property was seized, it was done legally. But the payment was made when there was no legal authority compelling Tuttle to pay the money. No matter whether the money was received by the defendants as a voluntary payment made by the agent, or under a judgment of a proper tribunal, the plaintiffs cannot recover it back in this form of action. It cannot be said that the defendants received the money for the use of the plaintiffs. It was received in opposition to a claim set up by them against the defendants. How then can it be said to be received for their use? Will it be said that [**47]  the assignees under their assignment, which was made in violation of the policy of the insolvent law, can recover against persons who had an equitable claim? The deed to the plaintiffs is in express contravention of the laws of this state, and shall the assignees under it recover of the defendants money received legally by them for a valuable claim? The deed is also void under the act of 1729, ch. 8, s. 5, prohibiting secret sales. This law is confined to property in the state, and could not affect any property not within its limits and jurisdiction. The lex loci must prevail as to personal property. De Sobry vs. Terrier, 2 Harr. & Johns. 224. Deeds and wills of personal property must be according to the laws of the place where the property is situated. Such a deed might be enforced in another country, where there was no equitable claim to the property in another person. Hunter vs Potts, 4 T. R. 182. Sill vs. Worswick, 1 H. Blk. 665. The reason why the assignment in the cases cited extended to another country, is given in the cases under an act of parliament extending it. Can it be said that the defendants are parties to the deed? It may be said that they have, as citizens of the state,  [**48]  given their assent to the insolvent law. Such a deed as this would, in England, be void as being against the bankrupt law. It should be so here, being expressly contrary to our insolvent law--being a fraudulent act as it relates to the creditors. It would be using the court as an instrument to sanction that which the law expressly declares to be improper. Goods purchased and not paid for, may be seized where the purchaser is insolvent, notwithstanding he ad assigned them, to defraud the creditor, for a valuable consideration. They may be stopped in transitu to pay the seller, notwithstanding his debt is not due. It arises on the high principle of equity, that a man who has sold property, and the purchaser becomes insolvent, shall take his property back, where he has not been paid, and notwithstanding his debt is not due. The claim is fair and honest. The rigid rule of law is to bend to the equity of such claim. The assignment to the plaintiffs covered all the debtor's property, notwithstanding it professes to say the surplus was to go to the general creditors. The schedule shows, that the whole property would not be more than sufficient to pay the debt to the plaintiffs. They cannot [**49]  recover unless they have a superior equity.

3. On the fifth bill of exceptions. 1. The record of the judgment in Martinique was admitted in evidence by the court below, as stated in the third bill of exceptions, (taken by the plaintiffs and not now before this court,) but the court below said it did not affect the plaintiffs' right to recover. They cannot say the evidence was inadmissible, because, on their bills of exceptions, this court is not to decide. The questions arising on that record are--1. Whether or not the decree therein mentioned is conclusive? If it is not conclusive, 2. How far it operates? And if it operates at all, 3. How far the plaintiffs have shown matter to avoid the prima facie operation of it? The judgment given by the court in Martinique is correct, and was properly given on the facts in the case. Those facts are correctly stated in the material parts, in the petition of Noland, the agent of the defendants. If Wright was guilty of fraud, the plaintiffs are affected by it, and answerable for it so far as the defendants are interested. The court at Martinique condemned the property for the benefit of the present defendants, on the proceedings as they then [**50]  stood before the arrival of the agent of the plaintiffs. When he arrived, he instituted a proceeding familiar in those courts, called a third opposition to the sentence before pronounced by the court. The agent was properly authorised to act for the plaintiffs; if he was not, for what purpose was he sent? He was sent to repel all proceedings which the defendants might institute for having their claim paid out of the cargo. The judge at Martinique recognised the agent, and the court were called upon to review their former decision, which they did, and decided definitively on the question in favour of these defendants, having before them all persons concerned, who were the present plaintiffs and defendants. If Wright was guilty of a fraud in the purchase of the flour from the defendants, the court in Martinique gave the same judgment which the court here would have given. That court had jurisdiction of the case. The property was there, and their laws had a control over it; and the court had a right to draw the conclusion from the facts, that Wright had been guilty of a fraud--that court having a right to judge on the law and the fact. The plaintiffs are not considered as aiding, or having [**51]  any knowledge of the fraud; but if Wright was guilty of a fraud, it will affect their right to recover. Allison vs. Matthieu, 3 Johns. Rep. 235. It was not an ordinary commercial transaction, but was manifestly a case of fraud; if it was not, how could the court in Martinique decide as it did? The plaintiffs were mere trustees, to indemnify themselves for notes endorsed--it was a resulting trust for any residue. Under the deed of assignment to them, they stood in the place of Wright. They did not take as purchasers, but they took the property subject to all claims. The property was never divested out of the defendants, there being a fraud practised on them by Wright. It was not a fair commercial transaction; but it is evident that fraud was intended--the purchase having been made with a view to bankruptcy. If the facts had been submitted to a jury of this country, the property would have been recovered by the defendants, from Wright's trustees. The court in Martinique was invested with cognizance of the case, and perfectly competent to decide. Suppose the property had not been shipped, and an action of trover had been brought by the defendants, would not the jury be bound to draw the [**52]  legal conclusion, that there was fraud; and if there was fraud in Wright, it is equally so in his trustees or assignees. This court would have drawn the same conclusion from the facts, which the court in Martinique did; and the same decision has taken place there, which would have taken place here, had the question been brought before a legal tribunal in this state. Winchester, et al. vs. Brooke, 2 Harr. & Johns. 1. The consignees of Wright were equally the consignees of the plaintiffs. The proceedings in Martinique is a proceeding in rem. Every person who could be, were made parties. Wright and his assignees were as much parties as they could be in the case of that kind, or as they would be here on a foreign attachment. If that court had acted upon the laws of this state, it could not have given a different decision--acting upon the civil law, or the law of nations, they could not have decided otherwise. 2. Whether that court had a right to draw the legal conclusion that there was fraud, is not for this court to decide, unless they undertake to constitute themselves a court of review, which it is contended they cannot do, but that they are concluded by the judgment which was given [**53]  by the court in Martinique.

On this question they cited Hughes vs. Cornelius, Sir T. Raym. 473. S. C. 2 Show. 232. Beak vs. Tyrrell, Carthew, 32. Green vs. Wallen, 2 Ld. Raym. 893. Ewer vs. Jones, Ib. 935. 12 Vin. Ab. 87. 1 Marsh. on Insur. 388, 390, 392, 393, 394, 398, 399, 401, 403, 404. The Christopher, 2 Rob. Adm. Rep. 210, (note.) Oddy vs. Bovill, 2 East, 473. Smith vs. Surridge, 4 Esp. Rep. 25. Bernardi vs. Motteux, Dougl. 581. Stodder vs. Dunlop, 2 Harr. Ent. 490. Rose vs. Himely, 4 Cranch. 276. Hudson vs. Guestier, Ibid 294. Croudson vs. Leonard, Ibid 434, 438. Fitzsimmons vs. The Newport Insurance Company. Ibid 186, 197. There can be no question but that admiralty sentences, from the year 1682 to the present time, have been held conclusive. Lord Kenyon says, in Walker vs. Witter, Dougl. 1, (note,) that he knows no reason why the judgments of all foreign courts are not evidence, as well as of admiralty courts. They contended, that the case of Burrows vs. Jemino, 2 Stra. 733, went the whole length of that before the court. In Cooke's Bank Laws, 522, cited in Sill vs. Worswick, 1 H. Blk. Rep. 668, the case was abandoned upon the force of the authorities cited. In Rapalje [**54]  vs. Emory, 2 Dall. Rep. 51, 231, the decisions referred to were recognized. But it will be said that later decisions are against the principle contended for on the part of the appellants; that in Hunter vs. Potts, 4 T. R. 182, 192, the money was directed to be refunded, notwithstanding the decision of a foreign court. This decision went upon the bankrupt laws, where both parties were English subjects, and were bound to know those laws--their assent to them was inferred. Sill vs. Worswick, 1 H. Blk 665, was decided on the same principle, of the parties being bound by the bankrupt laws of their own country, and refers to Le Chevalier vs. Lynch, 1 Dougl. 170. In Walker vs. Witter, 1 Dougl. 1, there is a class of cases in the notes, making the decision of a foreign court prima facie evidence of its correctness, so as to found a claim thereon to enforce it in a court in Great Britain. In Maley vs. Shuttick, 3 Cranch, 488, it was held, that the judgment of a foreign court was evidence of its own correctness. There was nothing to impugn the decision of the court in Martinique, which declared that the property was liable to the claim of the present defendants. It was a court of competent authority.  [**55]  Every thing was before the court, and the agent of the plaintiffs was contesting the case, so that it was between the present parties. There is no case which says that a decision between the same parties before a court of competent jurisdiction, is not conclusive. It might be questioned where it was not between the same parties, there would be no end to litigation. The decision of the court of Martinique strengthens the equitable claim of the defendants. What is the effect of a judgment rendered in a domestic tribunal as contrasted with a municipal tribunal? They are conclusive between the same parties in all other jurisdictions. Bull. N. P. 244 1 Peake's Evid. 75. Blackham's, case, 1 Salk. 290. Harper vs. Carr, 7 T. R. 270. Contee vs. Cooke, 2 Harr. & Johns. 179. Where the judgment of a foreign court is to be carried into effect, it is different. For instance, where a suit is brought upon a foreign judgment, the court here must be satisfied that it is correct, but it is prima facie evidence of the debt. In the case before the court, the judgment was executed--it was at an end, the money having been paid under it; but the plaintiffs come here and claim to have the money paid under [**56]  the judgment refunded, and paid to them. Before that is done they must show some authority for it, before this court will decide that the judgment is incorrect, and that the money paid under it shall be returned. Where a judgment is executed, there is an end of the subject upon which it was given. All the authorities go to establish the principle, that where a court is called on to carry into effect a judgment of a foreign state, it would not, until lately, do so; but owing to the peculiar situation of our union, a judgment in one state is conclusive evidence in every other state. There is a uniform system of decisions pervading the commercial world; and a judgment in one court of admiralty is respected in another. That court professes to act upon the law of nations; but in many cases they do not do so, and there have been many complaints upon the subject. Even Sir William Scott acts upon the local laws of his own government instead of acting upon the laws of nations. The judgments of such courts are respected; and if so, there is a greater reason to respect the municipal decisions of the country. Although this is not a decision of a British court of King's Bench, yet it is a decision [**57]  of a municipal tribunal. There is a distinction between the judgment of a municipal court which has been executed, and where it has not been executed; and there is a wide distinction where the judgment of a foreign court is brought in collaterally, and where it is brought directly before the court. In Rapalje vs. Emory, 2 Dall. Rep. 51, 231, the court decided, that the decision of the court of St. Eustatia was right; but that whether right or wrong, the judgment was conclusive. In Philips vs. Hunter, 2 H. Blk. Rep. 402. an attempt was made to obtain a preference out of bankrupt's property. The court said, that the judgment of the court in Pennsylvania must be taken to be binding between the parties to the suit in the foreign country. The opinion of Eyre, Ch. J. shows the true ground of the decision, which was, that the court could not examine into a judgment of a foreign country, when brought before the court collaterally; but that when the judgment was to be enforced, it is examinable. Where the money is paid under a judgment in a foreign country, it cannot be recovered back in the court of any other country. The authorities cited all show this to be the case, except cases arising [**58]  under the bankrupt laws of Great Britain, and between its subjects. If the judgment in Martinique was not conclusive, it was prima facie evidence of the judgment recovered, and the court below have said it "does not affect the plaintiffs' right to recover." Why did it not affect their right to recover? Was it not prima facie evidence of the debt recovered? The court permitted it to go to the jury, and then directed them that it was not to affect the plaintiffs' case; that it had no force, validity or effect. Why permit it to go to the jury if it was to have no effect? Can this court sanction such a decision? If the judgment offered in evidence was correct, then there is an end of the case, and the judgment of the court below must be reversed.

Harper, for the Appellees. 1. On the first bill of exceptions. An attempt was made by the defendants below, to prove that the money was received by their agent, under a judgment of a foreign court, without producing the judgment. Here was an attempt then to prove a judgment by parol. Can such proof be admitted? The rule of law is, that you cannot give parol evidence of a written paper, more especially of a record. The evidence offered to [**59]  be given by Mr. Sterett was mere hearsay, and was not suffient to let in the evidence offered by the defendants, to prove that Tuttle paid the money to Noland under a judgment. Whether the money was received in pursuance of the judgment, is to say that the judgment existed. Could it be evidence of the judgment, when the judgment, if any, might be produced? The witness might be mistaken, and the judgment was the best evidence.

2. On the second bill of exceptions. The objection to the opinion given by the court below on the statement in this exception, is that the court referred a question of law, to the jury. The prayer was, that if the jury believed the facts stated, then the plaintiffs were entitled to recover. The consequence in point of law was, that if the jury found the facts, then the plaintiffs were entitled to recover. The legal conclusion was to be drawn from the facts being found to be true. But it has been said that this is an equitable action, and that the plaintiffs cannot recover, their claim being an inequitable one. That Wright made the assignment to defeat his creditors, giving an undue and improper preference, which our insolvent laws will not suffer. That the [**60]  assignment was fraudulent; and yet evidence was given, that when he purchased the flour he was in good credit, and that the purchase was made solely for the purposes of general trade. There was surplus flour returned to the defendants, and this shows that no fraud was intended. There was no fraud, or the want of equity existing, to prevent a recovery by the plaintiffs. If a legal right was shown for the money, then the action will lie. There was not an undue and improper preference. The act of 1807, ch. 55, speaks of an undue and improper preference, and that it should be void. Does the act refer to the bankrupt laws as a system? It must refer to the common law. It was not an improper preference in equity. Under our laws a debtor may prefer one creditor to another. Under the bankrupt law, while it existed, such an assignment would not have been decided to be an undue and improper preference, and therefore void. M'Mechen vs. Grundy & Thornburgh's Lessee, 3 Harr. & Johns. 185. The insolvent laws do not say the deed, giving an undue and improper preference, shall be void, but that the party making it should not be entitled to the benefit of the law. It is not true that an action cannot [**61]  be supported for an equitable demand; and if were true, it is not true that the preference here given makes the deed void, and the demand inequitable. But here the question must depend upon the general law, and not upon the insolvent laws. There was a special insolvent law in favour of Wright, and his case was extracted from the general insolvent law. The general system of our insolvent law, if taken into view, will be found to be this, that if there has been an undue and improper preference, the petitioner shall not be discharged. What is an undue and improper preference under the act of 1805, ch. 110, that law does not determine. But it is said, that the act of 1807, ch. 55. does. This last act has nothing to do with the case. The special law, in favour of Wright, refers the question to the general or common law, not to the insolvent law system of the state. It comes under the general and legal principle, whether it is an undue and improper preference to secure a surety. There is no general system of insolvent law which stands in the way but the act of 1774, ch. 28, and that act does not. This is not a case falling under the insolvent laws. It is a special law of its own. There is [**62]  no general system of insolvent laws, and nothing to which the court can look, but to the general law of the land. If there was a general insolvent system, this case would not come under it, there being here a special law in Wright's favour. But it has been said, that the plaintiffs were mere trustees for Wright, and that the case is to be considered as if between him and the defendants. They are trustees, but for whose benefit? Not for the benefit of Wright, but for themselves; and they are the owners in law and equity. They are as much the owners of the property as if no trusts had been stated in the deed from Wright to them. The liabilities had been incurred by them, and only a few days had to elapse before the notes would fall due. They paid the notes before the proceedings were commenced in Martinique, and when the decision took place, they were interested as purchasers for a valuable consideration. This cannot be called a trust estate. There was an eventual interest in Wright, but the whole property was inadequate to the indemnity of the plaintiffs. There is nothing to distinguish this from the ordinary case for a transfer of a valuable consideration. There was no lingering equity [**63]  remaining in Wright. The spirit of the deed was, that the plaintiffs were to have absolute control of the property. How were they to get indemnity, unless they had such control, provided the deed was upon such a consideration which the law will sanction? Here was a proper consideration--sureties to be indemnified. There is no transaction which the law will sanction sooner than this. The law does not condemn it. The commerce of the country depends upon a wide-spread credit. How is credit to be obtained unless there is security? The law will allow that he who gives his aid to credit shall be secured, where no interest is asked for his securityship. He asks indemnity, and shall he be refused? Is it not for the public good that the surety shall be indemnified? That when the principal is tottering upon the verge of ruin, he may step forward and secure him who had pledged his fortune in his behalf? It is the first axiom in commercial transactions. The law will justify the making the indemnity. Will the postponing it to the last moment make any difference? The principal is bound to indemnify; and when a man becomes a surety for another, the principal is bound, and engages at the time, to [**64]  indemnify him to the extent of his resources. Sureties in every case should be protected, where there is nothing in the case which stains it with impurity. Here nothing of the kind is attempted to be shown. Our insolvent law is as hifting and changeable system--it is one thing to day, and another to-morrow. There is no uniform system in it. Resort must be had to what was the system before.

Finkney, also for the Appellees. On the second and fifth bills of exceptions. 1. How did the case stand at the time institution of the proceedings in Martinique? At the time of the commencement of those proceedings, and independently of the judgment, the plaintiffs had a right to recover, 1st. Under the assignment of the bill of lading. A bill of lading is assignable in its nature, and by endorsement the property is vested in the assignee. It is clearly settled, that goods at sea may be so assigned. Evans vs. Marlett, 1 Ld. Raym. 271. Wright vs. Campbell, 4 Burr. 2051. Caldwell vs. Ball, 1 T. R. 216. Lickbarrow vs. Mason, 2 T. R. 74. 5 S. C. T. R. 683. Haille vs. Smith, 1 Bos. & Pull. 569. Newson vs. Thornton, 6 East, 20, 27. Upon this principle the property of the goods at sea is held by the [**65]  possession of the bill of lading, and the legal interest of the property is immediately transferred from the owner to the assignee of the consignee, (a fortiori to his own assignee.) Pow. on Mortg. 35, 36. In this case Wright, the vendee, represents the consignee for value in the cases cited. His consignee was merely a factor for sales and returns, and as consignor and owner he retained power and right to transfer to the plaintiffs. 2d. Under the deed from Wright to them of the 24th of August 1810, which was duly acknowledged and recorded. The consideration was a valuable one, and as meritorious as it could be. Lempriere vs. Pasley, 2 T. R. 485. 3 Bac. Ab. 310. Twines case, 3 Coke, 80. United States vs. Hooe, 3 Cranch, 88. Pow. on Mortg. 41, 42. Coxe vs. Harden, 4 East, 212, 217. 5 Bac. Ab. tit. Mortgage, 52, cites Plumb vs. Fluitt, 2 Anstr. 432.

2. What were the defendants rights at law? Having sold and delivered the flour, it is impossible that they could have more than two rights at law, supposing no fraud in Wright, or even if there was, 1st. Of stopping in transitu, which affects the thing specifically. 2d Of attaching for the debt, as any other creditor might do. 1. They [**66]  had not the right of stopping in transitu. At common law their property was gone by a constructive delivery, and they were reduced to general creditors. The right of stopping in transitu was transferred from equity to law. It took its rise with the case of Snee vs. Prescott, 1 Atk. 245, by Lord Hardwicke, and is an equitable specific lien upon the thing of which the property has passed by another, and goes as far at law as at equity. It exists only in the case of the insolvency of the vendee. It never does or can exist after actual delivery to the vendee or consignee. It is an ambulatory right, which follows the property in its transit from the vendor to the vendee or consignee, and then ceases for ever. Constructive delivery, (which may be sufficient to alter the property,) does not interfere with it. Actual delivery extinguishes it. Now in this case there was actual delivery to Wright in Baltimore, and of course the right of stopping in transitu is a chimera. There was no transit to Wright in the case. The only material transit was from the vendors to Wright. The subsequent transit to Martinique was from Wright, not to him. Abbott, 352, 358. 6 Rob. Adm. Rep. 326. Ellis vs. Hunt,  [**67]  3 T. R. 464. Leeds vs. Wright, 3 Bos. & Pull, 320. Coxe vs. Hurden, 4 East, 217. The right of the vendor to stop in transitu, in case of the insolvency of the vendee, was a kind of equitable lien adopted by the law, for the purposes of substantial justice, and does not proceed on the ground of rescinding the contract. Hodgson vs. Loy, 7 T. R. 441. Salomons vs. Nissen, 2 T. R. 679. Lickbarrow vs. Mason, Ibid 70, 75, 683. There was no right, therefore, of stopping in transitu, upon which it is observable the court in Martinique proceeded. 2. The other legal right at the time of the commencement of the proceeding in Martinique, was of attaching as a creditor. But that right could not exist for two reasons--1st. The debt was not due. 2d. The property was altered before the defendants proceeded. It belonged to the plaintiffs; and moreover the court at Martinique did not decide upon this ground. The defendants had no legal right of any kind therefore, when they commenced their proceeding in Martinique. 1. They had not any property in the flour, for they had sold and delivered it to Wright. 2. They had not the right of revendication or stopping in transitu, because of the actual delivery [**68]  and possession, independently of the right of the plaintiffs. 3. They had not a right to attach, because their debt was not due, and because the property was passed to third persons.

3. What was the comparative equity at the same epoch, that is, at the commencement of the proceedings in Martinique? 1. As to the general equity. The plaintiffs' is that of a security; the defendants' of a creditor, who sold upon a long credit for profit, or with the expectation of profit. The thing sold is that which they attempt to affect for the purchase money; but that thing had become a portion of the mass of Wright's property, and they had taken a security, or note of hand, at 85 days, in lieu of it, and had thus become, and intended to become, mere general creditors. The general equity is at least equal. A security is always favoured in equity, and chancery will never raise an equity against him. which the law, strictly taken, does not raise. If a security in a joint bond dies, and the surviving obligor becomes insolvent, the bond cannot be set up against the security's property in equity, although it could be done against any other joint obligor. If there is any moral obligation which presses [**69]  more than another upon a trader, it is to indemnify his securities, at least there can be none superior to it A security becomes so from mere friendship, without hope of profit. He risks himself without the chance or expectation of equivalent, and oftentimes at the imminent hazard of run. The whole fabric of our commerce has depended upon securityships, bank negotiations, &c. and it is the fixed idea in the commercial world, that a man cannot do too much for indemnifying his securities. It is in fact the consideration, and the only one, which is paid for securityship. On the other hand the defendants sold for profit; they were not led by friendship, but influenced by calculation. What peculiar favour are they entitled to against those who had staked their whole fortunes, and the prosperity of their families, upon the success of Wright? There can be no impeachment of the defendants that they expected profit; but it is a reason why they have no moral claims above the plaintiffs. The property had been theirs indeed--but what then? It was theirs no longer--they had made it as much Wright's as any other of his goods; and had chosen to rely on his personal credit and solvency. The general [**70]  equity is therefore at least equal. Now what specific equity had the defendants? It has been said that they had an equitable lien beyond the right of stopping in transitu. 1. All the cases upon the right of stopping in transitu, show clearly that it is the ne plus ultra of equity, as well as of law. The chancery cases do not go beyond it. Snee vs. Prescott, 1 Atk. 245, did not. Suppose, however, that by analogy to the doctrine of lien for the purchase money in the case of real estates, this lien exists. It may be answered, 1. Even in the case of real estates, the lien, by implication, does not exist, where upon the contract it evidently was not intended to be reserved. Austin vs. Halsey, 6 Ves. 481. Now here it was not intended to be reserved; for a note of hand is taken with a long credit, and a knowledge that the goods were intended to be sent out of reach. And it has in one case, (Fawell vs. Healis. Ambl. 724. S. C. Dickins, 485, determined in 1773,) been decided, that in the case of the sale of real estate, if the vendor parts with it, and takes a bond for the purchase money, he has no lien against the general creditors of the vendee. There is no case that overrules this. The case [**71]  of Nairn vs. Prowse, 6 Ves. 759, does not affect it; for the master of the rolls decided no more than the case required, that is, that the taking a security did take away the lien by implication. The case of Pollexfen vs. Moore, 3 Atk. 273, was that of an agreement to purchase merely. 5 Vin Ab. (supp.) 180. 2. But at any rate there is no lien by implication against a holder for value, without notice of the equity. All the books agree to this, and it would be nonsense and iniquity if it were otherwise. A vendor has a lien for the purchase money while the estate is in the hands of the vendee; that is, against general creditors. Austen vs. Halsey, 6 Ves. 480. Now the plaintiffs were holders for value, (upon a consideration the most meritorious,) without notice of the defendants' equity. There is no notice stated in the bills of exceptions, and de non apparentibus et non existentibus eadem est ratio. They must show notice if they mean to stand against a legal title upon a claim merely equitable. This is so at equity. Even, therefore, if real estate, this idea of lien, beyond the right of stopping in transitu, could not be countenanced. But the doctrine, as it applies to real estates, has [**72]  nothing to do with this case, which is of personalty. There is no adjudication or dictum to be produced which looks that way. Cases of stopping in transitu profess to exhaust the equitable doctrine as it applies to personal things; and Ex parte Gwynne, 12 Ves. 383, proves that to be so. And besides, the cases of stopping in transitu show, that even while the goods are in transitu, if they are transferred by the consignee or vendee to a third person for valuable consideration, (especially if without notice of the equity,) the right to stop in transitu is gone. This while in transitu; for after they reach the vendee or consignee, there is no right of revendication at all--there is no lien of any kind at law, nor in equity. It results, that the plaintiffs and defendants were in equal equity; and that so being in equal equity, the plaintiffs obtained the title at law--thus uniting law and equity. It results again, as will be shown, that unless the judicial sentence in Martinique is competent to prevent it, the plaintiffs are entitled to recover, in this form of action, the money which belonged to them, which the defendants got into their possession under pretence of title. There are only [**73]  two possible objections--1. That in this form of action the plaintiffs can recover only upon equitable principles. 2. That there was no privity--the money having been received under an adversary title. 1st. As to equitable principles. The rule in chancery is, that where the equity is equal, he who has the law shall prevail. Per Lord Chancellor Cowper, in Oswicke vs. Plumer, 5 Bac. Ab. 41, 42, Per Ashurst, J. in Caldwell vs. Ball, 1 T. R. 241. Nay, where one equity is prior to the other, but in other respects equal, the last equity shall prevail if it becomes united to a legal title, against the maxim "qui prior est in tempore potior est in jure." Thus where the second mortgagee purchases in (even with notice of the first mortgage,) an incumbrance anterior to the first mortgage, he shall overreach the first mortgage in equity. 5 Bac. Ab. 55, 56. Nay, where it is only a general equity against a specific equity, if, without notice of the specific equity, the other party gets a title at law, he shall prevail against the specific equity. Thus--"although a deposit of title deeds amounts to an equitable mortgage, yet if a creditor of the mortgagor, fearing his immediate insolvency, take a [**74]  conveyance of the same estate without notice of the incumbrance, equity will not prevent him from availing himself of his legal estate." 5 Bac. Ab. 53. Plumb vs. Fluitt, 2 Anst. 432. So that even if the defendants had a specific equity, since the plaintiffs as securities, (stronger than the case of a mere creditor,) got the legal title without notice of their equity, it would not be repugnant to equitable principles that they should be allowed to have the benefit of their legal title. The defendants, however, had no specific equity. They had no equity superior to that of the plaintiffs, who have united the law to their equity. Again--Where there is no peculiar equity on either side, the strict law shall entitle the plaintiffs to a verdict. De Hayn vs. Hartley, 1 T. R. 343. There is no necessity, therefore, that there should be any peculiar equity with the plaintiffs. It is sufficient if the law is with them, and the claim is not condemned by conscience and honesty. Here it is not so condemned. 2. The want of privity. The rule is, "in an action for money had and received the receipt shall be always deemed to enure to the use of him who hath the right, even though it be taken under an [**75]  adverse title; as for instance, when this species of action is brought to try the title of an office." Philips vs. Hunter, 2 H. Blk. Rep. 408. 1 Vin. Ab. 268, (N. 2.) pl 1, 2. Howard vs. Wood. 2 Show. 21, 24. Tettenhan vs Bedingfield, 3 Leon. 24. Arris vs. Stukets, 2 Mod. 360. 1 Vin. Ab. (Supp.) 99, (N. 2.) pl. 2, 4; 103, pl 10. Thomas vs. Whip, Bull. N. P. 130. Hern vs. Nichols, 1 Salk. 289. Bull. N. P. 35. 2 Com. on Cont. 44. Moses vs. Macferlan, 2 Burr. 1009 Astley vs. Reynolds, 2 Stra. 915. The King vs. The Bishop of Chester, 1. T R. 403, 399, (and note.) 1 Bac. Ab. 260. Jacobs vs Allen, 1 Salk 27. 1 Vin. Ab. 263, (N) pl. 2.

4. We come now to consider the effect of the judicial proceeding in Martinique. Has it any, and what effect, upon the right of the plaintiffs to recover? The defendants set it up as a flat bar. They say it has decided the matter of the present controversy, and that the plaintiffs cannot recover against a judicial decision, even though a foreign decision. We say it is no more than prima facie evidence, and scarcely that. 1. In strictness, the courts of one country are not in any degree bound by the judgments of the courts of another. This is the result [**76]  of their independence and sovereignty, as well with regard to judicial, as to executive and legislative acts. If they are bound by the judicial acts, they are bound by the legislative acts; for the judiciary does but expound apply, and enforce the legislative will. Lord Kaime's Pr. of Eq. 374. But comity has in England given to them a qualified binding force of considerable extent. And here it ought to be observed, that in Scotland, in France, and the other nations of Europe, no such comity exists. Ibid. In France a judgment rendered in this country would not be received as conclusive, and in Martinique it would not. And are we to take theirs as conclusive upon notions of comity, which are not reciprocal? Comity, however, has never in England made such a judgment as this conclusive. The general doctrine shall be shown bye and bye, at present the peculiar reasons will be given why this proceeding cannot affect the plaintiffs--1. The plaintiffs were no parties to it. By the record it appears that the vessel and cargo were seized on the 6th of October 1810, by an order of the 5th, at the instance of the defendants, and others. Their petition stating their right and claim, &c. on the 9th,  [**77]  and a final judgment in their favour on the 11th. Upon this judgment the defendants now stand; under it they received the money. There was no new judgment pronounced. This is obvious from the sentence of the 11th and that of the 16th. B. Nicholson arrived after the first judgment. He had no choice but to remonstrate and ask a revision, &c. and he did so; but the court refused to annul it; and so it was executed. If he had not remonstrated, the judgment would have been executed, and his remonstrance produced no change. This did not make the plaintiffs parties to a judgment which had been passed before their agent arrived. A foreign judgment cannot have greater force than a domestic judgment of a court not of record; and such a judgment does not generally bind those who are not parties. 1. Decrees of the court of chancery 2. Ecclesiastical courts. In the Dutchess of Kingston's case, 11 St. Tr. 243, a sentence or jactitation of marriage was not conclusive, because it was offered against other parties, (in a prosecution for bigamy,) also per fraudem. The maxim of law is, "res inter alios acta tertius nec nocel nec prodest." It would be monstrous if it were otherwise. It may be said that [**78]  admiralty sentences, in cases of prize, show the contrary. This is upon the presumption that all the world are parties to prize causes; and it fortifies what is contended for on the part of the plaintiffs. Croudson vs. Leonard, 4 Cranch, 437. But the conclusiveness of admiralty sentences, (in personam as well as in rem,) is an anomaly now almost universally condemned. In Lothian vs. Henderson, 3 Bos. & Pull. 499, which went up to the House of Lords, and in which all the judges delivered their opinions seriatem, it appears that almost all of them condemned the doctrine, although they considered themselves bound by positive decisions to adhere to it; and Baron Grahame gave his opinion against it. In Fisher v. Ogle, 1 Campb. 418. Park, 494, 6, 7, and 1 Marsh. 435. Lord Ellenborough calls it an overstrained comity; and in Donaldson vs. Thompson, 1 Camph. 429, 1 Marsh. 435, he says, "I am by no means disposed to extend the comity which has been shown to these sentences of foreign admiralty courts. I shall die, like Lord Thurlow, in the belief that they ought never to have been admitted. The doctrine in their favour rests upon an authority of Hughs v. Cornelius, 2 Showers, 232, which does [**79]  not fully support it, and the practice of receiving them often leads to the greatest injustice." In the United States, some of the state courts have rejected the doctrine; and such as have admitted it, have relied upon grounds peculiar to admiralty sentences, and have reluctantly received it after all. However this may be, the reason of the doctrine maintains the objection that the plaintiffs, not being parties to the judgment at Martinique, under which the defendants claim, they are not bound by it. In truth, with reference to the personal rights of Maryland, citizens out of the jurisdiction of the court, the court had no jurisdiction, (except as they might be affected by jurisdiction over the thing.) Even Lord Kenyon admits this in his remarks on Lord Hardwicke's observations about the Welch decree. Galbraith vs. Neville, 1 Dougl. 6, (note). And in the latter part of his opinion he says, the foreign courts must have competent jurisdiction. Now here the court in Martinique had none over the plaintiffs, and therefore could not affect their rights. And here may interpose a short inquiry. The rights were personal, and the court of Martinique had no jurisdiction over their persons. It [**80]  might do as it pleased with the thing while in its power; but the rights and interest in the American proprietors, it could not reach, because they were not in its power or amenable to it. The thing being in Martinique, it could act upon it and bind it by a proceeding in rem, so as to protect purchasers, and force the proceeds into whose hands it thought fit. But there the power stopped. The reciprocal rights and obligations of the present plaintiffs and defendants remained as they were; for the judgment could not act in personam--the parties not being amenable to the jurisdiction. The judgment, therefore, produced the effect of putting the money into the hands of the defendants by means of power over the thing; but having accomplished that result, the conflict between the personal rights of the plaintiffs and defendants passes ad aliud examen, and falls again (where indeed it always was,) under the jurisdiction of the law of this state, which created, defined and regulated them. In a word, the judgment did all that power over the thing enabled it to do. It could do nothing to change the relative personal claims of the plaintiffs and defendants, because it had no jurisdiction over [**81]  the persons in whom those claims inhered. 2. But even supposing they were parties in form, can comity bind this court to shut its eyes to the substance of the fact? Was B. Nicholson authorised to make the plaintiffs parties? Look at his authority, as recorded in the proceeding. Nothing of the sort was intended or thought of. His business lay with the consignee or factor, and he could anticipate no dispute with him. He had the assignment of the bill of lading, and letters to Marean, &c. But moreover, look at the rapidity with which this proceeding went on. In two days after filing the petition by the defendants, judgment was pronounced. In four days after, B. Nicholson entered his remonstrance; his remonstrance is overruled. He arrives on the 11th, and is compelled immediately to remonstrate, and in four days is dismissed, and with a fine. They were not a party to any purpose. 3. But the great objection is, that the judgment upon the face of it, is manifestly unfit to be adopted as conclusive, and that consistently with it the present plaintiffs may recover. Either this judgment is in the nature of a judgment on attachment, or it is founded upon the right of revendication before spoken [**82]  of, as belonging to the vendeur primitif. It is expressly said to be the last of these upon the face of the proceeding itself, and so we must take it to be. If it had been the first, it had been palpably unjust, since the property appeared to be vested in the plaintiffs, and the note to the defendants was not due. Now we have already seen, that by the law of this state the vendeur primitif had no lien--no right of revendication. That the delivery to, and possession of Wright, had taken them a way, and that the property, having passed to the plaintiffs for value, there could be no pretence for lien or revendication, even if the goods were in transitu, as they were not. Let us now inquire then--1. By what law the rights of the plaintiffs and defendants ought to be decided? Whether they depend on the law of this state, or that of Martinique? And 2. By what law the court of Martinique undertook to decide them? 1. The reciprocal rights of these plaintiffs and defendants depended altogether upon the law of this state--Lex domicilii. 1. Because the law of their domicil. 2. Because the law of the transaction--Lex rei gesta: for it was entirely a Maryland transaction--begun there and intended [**83]  to end there--passing through Martinique for a moment. 1. The parties were citizens of this state, and the transaction was a Maryland transaction. Law of the domicil and the lex rei gesta the same, and ought to have been applied to the case. Burrows vs. Jemino, 2 Stra. 733. 12 Vin. Ab. 17, pl. 9. De Sobry vs. Terrier, 2 Harr. & Johns 191. Rights to personal things follow the domicil of the parties. Succession ab intestato, &c. So a transaction may depend on the place where carried on, and intended to be concluded. Sill vs. Worswicke, 1 H. Blk Rep. 690. Philips vs. Hunter, 2 H. Blk. Rep. 406. Piper vs. Piper, Ambl. 25. Thorn vs Watkins, 2 Ves 35. In our case it is undeniable that the parties could have had no rights but such as the law of this state gave. They were all citizens of this state, acting as Maryland merchants. The sale of the flour--the note of hand payable in Baltimore--the delivery of the flour--shipment--assignment of the bill of lading--deed of trust--all Maryland acts, looking to the law of Maryland peculiarly and exclusively. It was intended, to be sure, by Wright, that the flour should go to Martinique, and be there sold; but returns were intended, and therefore the [**84]  whole affair was intended to end as it had been begun and carried on in this state. But the court in Martinique has confessedly, upon the face of the judgment, applied the law of that Island to the case. Is it fit that the law of that Island should supplant the law of Maryland? Is it not unjust? consistent with the duty of this court to take what it sees to be a French rule for a guide, where the law of this state ought alone to determine? It is contended that it is unjust, and that this injustice and impropriety appear upon the face of the French proceeding. Buchanan vs. Rucker, 1 Campb. 63, 180, b. Now here there is a vice on the face of the proceeding. It professes to adjudicate by a law which has nothing to do with the rights of the parties. This is the grossest injustice, which the administrators of the law really applicable to those rights, cannot and will not tolerate. They must abdicate their duty first. Let it be remembered, that no foreign judgment is binding in itself. It is comity alone to which it owes the respect which is paid to it. The great reason why a foreign sentence binds at all, even from comity, is that the foreign tribunal is presumed to understand the law of [**85]  the case; that is, the law by which itself is bound, or of its own country, better than the court before which the foreign sentence is produced. As if the sentence turns upon a point of local law properly applicable to the subject, it ought to be respected, because it is of much greater authority to show what that law is, than any other which can be produced. This reason presumes, however, that it is the local law which ought to give the rule, and consequently does not apply where the decision ought not to be upon the law of the place where the first tribunal sits. For example, in this case, the rule ought not to have been the law of Martinique--the lex rei scitae, but the law of Maryland--the lex domicilii and the lex rei gesta. The court of Martinique knew nothing of the law of Maryland, and did not profess to apply it. This court understands that law. By receiving the sentence then as conclusive, this court invert the motive. This court receives the foreign sentence, because the foreign court is supposed to know the law of the case--the lex loci, better than this court. But here confessedly the foreign court knew nothing of the law of the case, (as it was not the lex loci,) and [**86]  it is this court that knows it. This court then is called upon to take their ignorance for its guide, and to give up its own peculiar knowledge to comity, upon the foundation of a rule which intended to provide for the court's instruction, not for its stultification. Such comity would be a crime. It would be to give to a perty tribunal in Martinique a power to repeal the law of this state--to trammel our judicatures--to fix its patches upon our jurisprudence, and wrest our rightful jurisdiction from us. Let us look again at the case of Burrows vs. Jemino, 2 Stra. 733. 1. The thing and the parties were within the jurisdiction of the court at Leghorn; and 2. "The Lord Chancellor was clearly of opinion, that this cause was to be determined according to the local laws of the place where the bill was negotiated," &c. And hence he considered the decision of the court, administering that local law, binding upon him. It was the highest evidence of that law, by which the case ought to be decided. Is this so here? Who will maintain that the law of Martinique ought to be the rule on this occasion; or that a Martinique sentence ought to bind, because it furnishes the best evidence of that law,  [**87]  in a case where that law ought to have no effect whatsoever? The judgment of the court of Martinique is erroneous on the face of it, as applying a law which was not applicable. So in the case of an award, if an error in law appears on the face of it, although the judges are of the parties own choosing. But 2. The plaintiffs may recover consistently with that judgment. The first judgment has nothing to do with the plaintiffs' rights. It acts only on those of the defendants, as they represented them. The rights of the plaintiffs may therefore, without violence to that judgment, be now enforced Let the first judgment conclude as far as it goes, and what does it say? That (without looking to the rights of the plaintiffs,) the defendants ought to be paid out of the proceeds of the flour. Be it so; but we are now looking to the plaintiffs' rights, upon which that judgment says nothing, and against which of course it can conclude nothing. Push it as far as it can go, and the plaintiffs are clear of it. But suppose the opinion pronounced upon the plaintiffs' rights in the second judgment, (under which it is always to be observed the defendants do not claim,) is taken in, and what does that [**88]  amount to, taken in connexion with the first, and interpreted as largely as possible? Simply, that by the law of Martinique, (which that court believed itself bound by,) it was of opinion that the defendants were entitled to be paid. Agreed--but it is consistent with that opinion to give the plaintiffs redress by the law of Maryland. That opinion may be correct, and yet the plaintiffs may be entitled to recover. It may conclude, and yet the defendants may be obliged to refund. It may be true that by the law of Martinique the defendants had the right of revendication, and to take in satisfaction of their debt the property of the plaintiffs, and it may also be true, that by the law of Maryland they ought to refund to the plaintiffs what, by that law, belongs to them. As an evidence of local law let the foreign opinion be respected, (and it claims to be no more than an opinion upon local law;) but if the case is out of that foreign law, and belongs to the domestic code, the turn of this court to adjudicate upon the merits, has now arrived without any disrespect to that opinion; and it is now the province of this court to apply the domestic rule, not hitherto touched by any judgment, and [**89]  consequently perfectly at large. In a word, the whole of this case is open without impeaching the judgment at Martinique, which has never decided upon the rights of these parties by any law on which they depended. That decision remains to be given here. And here the case of Moses vs. Macferlan, 2 Burr. 1009, is in point, where it was said--"The ground of this action is consistent with the judgment of the court of conscience. It admits the commissioners did right. They decreed upon the endorsement of the notes by the plaintiff, which endorsement is not now disputed. The ground upon which this action proceeds was no defence against that sentence." "The ground of this action is, not that the judgment was wrong, but that (for a reason which the now plaintiff could not avail himself of against that judgment,) the defendant ought not in justice to keep the money." Now here the opinion is not impeached, that "by the law of Martinique the defendants ought to have recovered." The plaintiffs only insist, that by the law of this state, which furnishes the true rule, but of which in the court of Martinique the plaintiffs could not avail themselves, the defendants ought not to have recovered, and [**90]  therefore cannot now in justice keep the money. And observe too, that in Moses vs. Macferlan, the parties before the court of King's Bench, were the same parties who were before the court of conscience. The tribunals were both domestic--the jurisdiction of the first tribunal was complete, and was not denied, yet as the point upon which the plaintiff claimed in King's Bench had not been denied in the court of conscience, although it was material to the merits, the former court thought itself not precluded from going into it. In the present case there are different parties--the tribunal foreign--the jurisdiction denied. The authority of Moses vs. Macferlan may be vindicated against the opinion of Ch. J. Eyre, in Phillips vs. Hunter; and it is an authority to show, that want of privity is nothing in this action, and that even a recovery in an adverse suit is nothing. 3. But that the defendants cannot hold this money upon the Martinique judgment, because they obtained possession of it against the law by which they were bound, which law, (the law of Maryland,) gave it to the plaintiffs. As between them and the plaintiffs the law of this state is the rule and measure of their rights. Both [**91]  were bound by that law. The defendants have resorted to a Martinique tribunal to get rid of that law, and to violate those rights. The very production of such a sentence is a wrongful act. It is in fraudem legis. The law of Maryland says, "you shall not seize or obtain payment of your debt out of this flour." By a direct infraction of that law, they have made use of a foreign tribunal, ignorant of the law of Maryland, and unwilling to apply it, to seize the flour, and obtain payment of their debt out of the proceeds. They sail against the wind and tide of the law, by which they are bound--by which the transaction was impressed. They bid defiance to it, and set up a trick and an evasion against it. It is impossible that any thing which deserves the name of jurisprudence can suffer this. Such, will be shown, are the authorities--the best weighed and most maturely considered. But before that is done, let us take a slight view of the general authorities respecting foreign judgments, upon which the defendants have relied. The cases are all collected in 1 Dougl. (in a note,) from page 4 to 6, subjoined to the case of Walker vs. Witter, which is itself an authority upon this matter, where [**92]  Lord Mansfield says, "foreign judgments are a ground of action every where; but they are examinable." Crawford vs. Whittal, (in the note) is to the same effect. In Sinclair vs. Frazer, (also in the note,) it is said to be prima facie evidence, and that it lies on the defendant to impeach the justice thereof, or to show the same to have been irregularly or unduly obtained. Plaistow vs. Van Uxem, (also in the note,) is to the same effect. In Galbraith vs. Neville, (also in the note,) Lord Kenyon was for making it conclusive. Buller, J. "A foreign judgment is conclusive till impeached by the other party." "A foreign judgment is only to be taken to be right prima facie; that is, we will allow the same force to a foreign judgment that we do to those of our own courts not of record." "In short, the result is this, that it is prima facie evidence of the justice of the demand in an action of assumpsit, having no more credit than is given to every species of written agreement, viz.--That it shall be considered as good until impeached." It is clear then, from all these general authorities, that if the defendants were plaintiffs, to obtain here the effect of their judgment in Martinique, they [**93]  could only use it as prima facie evidence. Why should they have a larger benefit from it when they offer and rely upon it as defendants? In none of the cases is this distinction taken, until it was taken by Ch. J. Eyre, in Philips vs. Hunter, 2 H. Blk. Rep. 402, and there he was overruled by all the judges in the Exchequer Chamber, and Lord Loughborough was against him in the common pleas. Buller, J. indeed, attributes to Lord Hardwicke such a distinction in the case of the Welch decree, affirmed by the House of Lords. But that was a case in chancery, and turned upon the maxim, that he who seeks equity shall first do it. And moreover it was a domestic decree by reason of its affirmance by the House of Lords, and quite impossible that Lord Hardwicke should disturb it. It was going a great way to say, that if he was called upon to enforce it, he would examine into its merits. The distinction is in itself unfounded and idle. If the judgment is good as a defence, it is good as a claim. In both cases this court is called upon to respect and enforce the foreign judgment. Independently of that judgment the plaintiffs have a right to recover. The defendants set up the judgment to take away [**94]  that right, and consequently ask the court to give effect to it. Does he who pleads a bond as a discount, less call upon the court to set up and enforce the bond, than he who brings an action upon it; and will the bond do in the one case what it will not do in the other? Either the foreign judgment is binding in its own nature, or it is not. If it is binding, it ought to be enforced for a plaintiff as well as a defendant; if it is not binding, this court cannot make it so. The defendants say this judgment is conclusive. How? In itself?--No, for then it would be conclusive for a plaintiff. How then? No answer can be given. Do they not ask an effect for this judgment? Must you not give effect to it (if you do as they ask,) by your judgment? Could you give greater effect to it on behalf of a plaintiff? They do not rely upon the mere vis inertiae of this foreign judgment. They rely upon your adoption of it--Upon your forming an alliance with it--Upon your reinforcing it by your own judicial aid--Upon your communicating to it life and strength and power. Put this foreign judgment out of the way, and have the defendants any case? None. Upon what then do they lean but upon this judgment?  [**95]  And what is this judgment if you do not execute and enforce it against the plaintiffs to the destruction of their case? We come now to the cases of attachment decided in England in favour of assignees against general creditors, which are absolutely conclusive. Hunter vs. Potts, 4 T. R 182. Sill vs. Worswick, 1 H. Blk Rep. 665. Philips vs. Hunter, 2 H. Blk. Rep. 402. This last case was error in the exchequer chamber, from a judgment in King's Bench in a case decided immediately after Hunter v. Potts, which was considered as settling the law. In Hunter v. Potts, the whole argument of the court proceeds upon a supposition, that if the owner (the bankrupt,) had himself assigned, in the usual course of business, his assignee might recover, which is exactly our case. In that case both parties were English subjects, &c. In Sill vs. Worswick the court say, "personal property has no locality, but is subject to that law which governs the person of the owner." Our case is more favourable than Philips vs. Hunter, because the property here went from America, and was on its way back through Martinique. In Philips vs. Hunter it was not so, the defendant in that action brought it to England by means [**96]  of his attachment, and it might not have got there otherwise. In that case all the parties were English traders, and English subjects. The debt from the bankrupt to the defendant was contracted in England. It was a case between English subjects upon English property. So here in our case, the parties are Maryland traders, and Maryland citizens. The debt from Wright to the defendants was contracted in Maryland. It was a case more emphatically between Maryland citizens, upon Maryland property, for not only the debt to the defendants was contracted in Maryland, but the property, out of which they took payment, was shipped in Maryland, and was to return to Maryland. In Philips vs. Hunter, the court compares the case under the bankrupt law to a transfer by the bankrupt himself, which it takes for granted would defeat the attachment. They say the parties were bound by the law of their own country. That applies exactly here. The opinion of Eyre, Ch. J. (who differed with the court,) sets out upon a false assumption, that the plaintiff's demand must be judged of according to the law of the foreign tribunal.

Curia adv. vult.  

JUDGES:
The cause was argued at the last term on the first, second,  [**97]  and fifth bills of exceptions, before CHASE, Ch. J. and BUCHANAN, EARLE, JOHNSON, and MARTIN, J. BUCHANAN, J., dissenting.  

OPINIONBY:
CHASE 

OPINION:

 [*105]  At this term the opinion of the court was delivered by
CHASE, Ch. J. This opinion the Reporters regret they have not been able to procure. The result of it however, was, that this court dissented from the opinion of the court below in the first bill of exceptions, and concurred with that court in the opinions in the second and fifth bills of exceptions.  

DISSENTBY:
BUCHANAN 

DISSENT:

BUCHANAN, J. dissenting from the opinion of the court, delivered the following opinion: I regret that I cannot unite with my brethren in the judgment pronounced in this cause, but will endeavour to give my view of the subject, in which I have the less confidence, being unsupported by the opinion of either of the other members of the court, on the principal question presented for consideration.
This case is brought up on three bills of exceptions, No. 1, 2 & 5, in the record, taken at the trial, on the part of Owings and Cheston, the appellants. The exceptions No. 3 & 4, taken on the part of the appellees being waived, and forming no part of the [**98]  subject of this appeal, have not been examined into.
The question growing out of the first bill of exceptions is, whether parol evidence of a foreign judgment can be received? And I think the court, before whom the case was tried, did right in not suffering such evidence to go to the jury. It is not to be questioned, that if a foreign judgment had been produced, Benjamin Noland might have given evidence that the money he received was paid in pursuance of that judgment. But no such judgment, or copy of such judgment, being produced, the circumstance that he had been examined on the part of Nicholson and Williams, to prove that he had received the money in question from Tuttle, and paid it over to Owings and Cheston, affords no foundation for letting in his deposition, taken on a cross examination by them, to prove that proceedings were instituted in a court at St. Pierres, to which Nicholson and Williams were parties, and that a sale of the property proceeded against, was definitively decreed for the payment of the claim of Owings and Cheston, and others. That was the testimony offered, and if it had been received, there would have been no [**99]  necessity for producing the judgment to enable the court to see who were parties, and what was decided by it, and thereby to judge of its legal effect; since it would have been already proved, that the proceedings were in rem, that Nicholson and Williams were parties to those proceedings, and that the judgment was against the thing, the proceeds of which form the matter of controversy in this suit, and the effect of the judgment, to be collected, not from evidence offered by the judgment itself, but from Noland's loose impressions of its import; which would be subversive of the established rule of evidence, that authenticated copies of records are 

 [*106]  required, in the absence of the originals, as the next best evidence, and cannot be supplied by parol. And the whole of a record, and not a partial extract, must be produced, in order that the court may be put in possession of the full effect of it; for a part only may have an import, materially different from the whole taken together; and the object, with a view to which the whole record is required, would be equally defeated, by the admission of parol evidence. And so with regard to proceeding in foreign courts,  [**100]  the reason and the law are the same. It is to the rejection of the evidence offered, of the proceedings and judgment in Martinique, that the exception is to be considered as taken, and not the admission of the process, that Noland received the money, in the character, and under the impressions, stated in his deposition, by which Owings and Cheston were in no way prejudiced. And as Noland's impressions were not very material, I have not examined how far the court was right in suffering them to go to the jury, and shall not, for that reason, quarrel with the opinion.
There are two questions arising on the second bill of exceptions--1. Whether the assignment by Wright of the 24th August to Nicholson and Williams, of the bill of lading, and his deed to them of the same date, passed the property in the cargo of the brig Hunter to them. And 2. If they did, whether they can, in this form of action, recover from Owings and Cheston, so much of the proceeds of the cargo as was received by Noland from Tuttle, and by him paid over to them.
In support of the negative of the first proposition, it is contended--1st. That Wright purchased [**101]  the flour, which formed the cargo, in contemplation of failure, with a view to secure Nicholson and Williams against certain liabilities incurred by them on his account. That the purchase was fraudulent and void, and therefore that the property in the flour did not pass, and not being in him, he could not transfer it to another: And 2d. That if Wright did acquire a property in the goods, his assignment and deed to Nicholson and Williams, amounted to an undue preference, to the prejudice of other creditors, and were therefore void. But neither of these positions can be sustained. If it should be admitted, that a purchase of goods, in contemplation of failure, and with a view to secure a favoured creditor, would in law be fraudulent and void, yet the principle would not reach this case. It no where appears that Wright either was, or supposed himself to be in insolvent circumstances, or in danger of failure, at the time he purchased the flour; or that he made the purchase with a view to secure Nicholson and Williams in preference to other creditors. But the converse may be collected from the facts in the cause; for it is in proof, that he had purchased [**102]  from Owings and Cheston more flour than that, for which his note to them was given; but that the vessel he was about to load, not being able to carry the whole, he returned 

 [*107]  to them what could not be put on board, and passed his note for the balance. Now, if he intended a fraud, or made the purchase with a view to the preference contended for, it is not to be presumed that he would have returned any part of the flour, but would have applied it to the purpose for which the purchase was made; and more particularly when the whole amount of the flour was not equal to the liabilities, which Nicholson and Williams had incurred on his account, and his not having done so, precludes the suspicion that he made the purchase with a view to an improper preference, and exempts the transaction from the imputation of collusion between him and Nicholson and Williams, for their benefit, at the time the flour was purchased. And the objection that the assignment of the bill of lading, and the deed to Nicholson and Williams, are void on the ground of undue preference, is not better supported. At common law, a debtor may secure one creditor, to the exclusion of [**103]  others, either by payment, or assignment of his property. The bankrupt laws of England are not in force in this state, and there is no act of assembly, that can be so construed, as to defeat the operation of either the assignment or deed in question. The insolvent act of 1805 provides, "that if any person shall be convicted of giving to any creditor or security an undue and improper preference, he shall be deprived of the benefit of the act." What amounted to "an undue and improper preference" under that act, became a question; and the legislature, in 1807, passed a law, in which it is provided, "that a deed made by any person, in favour of one creditor or security, in contemplation of becoming an insolvent debtor, shall be taken to be an undue and improper preference, within the meaning of the act of 1805." But by neither of those laws is it declared, that a deed, assignment, or any other act of undue preference, is fraudulent or void, or inoperative to pass the property. Wright indeed, by the preference given to Nicholson and Williams, forfeited all claim to the benefit of the act of 1805, and if he had applied for relief under that act, it would have been denied [**104]  him, by which denial the law would have been gratified; for though, as a punishment on a debtor for giving such, undue preference, the law withholds from him its benefits, it does not operate to the prejudice of the preferred creditor; but the deed by which the preference is given, remains in full force, and vests in him the property intended to be transferred, if in other respects it is regular, which seems to be the case here. With respect to the bill of lading, it is an assignable instrument, and it is a common mode of transferring the cargo of a vessel. And the assignment in this case, made when the brig Hunter was at sea, proceeding on her voyage to Martinique, is clear of all exception; and Nicholson and Williams, having paid the amount of the debts, (as security against which the transfer was made,) before the money was received by 

 [*108]  Noland, from Tuttle, the property in the cargo became absolute in them.
It remains then to inquire, Secondly, whether, having a right to the property, they can in this form of action recover from Owings and Cheston such part of the proceeds as came to their hands? Of which it seems to me, there [**105]  can now be but little doubt. Having a complete legal title to the property, they had an equal right to the proceeds. And a part of those proceeds having come to the hands of Owings and Cheston, without right, the law considers it as received for the use of those, who ex equo et bono, are entitled to it, and raises an implied promise to pay, on which an action for money had and received will properly lie. I think therefore that the second exception cannot be supported.
The fifth bill of exceptions presents this case in a different view, and the question is, how far the right of Nicholson and Williams, to recover in this action, as supported by the facts set out in the first and second bills of exceptions, is affected by the proceedings in the court of the first instance in the Island of Martinique. To which it is objected--1st. That Nicholson and Williams were not parties to those proceedings; and 2d. That if they were parties, those proceedings are not conclusive on their right to the matter in controversy.
It is a well established principle, governing the courts in England, that a judgment or sentence of a foreign municipal, or [**106]  admiralty court, having competent jurisdiction, is conclusive in a case between the same parties, upon the same matter coming incidentally in question. The same principle has been adopted by the courts of Pennsylvania, and the Supreme Court of the United States; and for the same reasons governing them, I shall consider this court as bound by the same rule. In the case of Sill vs. Worswick, 1 H. Bl. 665, referred to in the argument, it is ruled, that if a British subject becomes a bankrupt, and another British subject, a creditor, recovers his debt by attachment against the property of the bankrupt, in a foreign country, after the bankruptcy, and returns to England, the assignees of the bankrupt may, in an action against him for money had and received, recover back the money so obtained. That case turned altogether upon the operation of the bankrupt laws of England. But in deciding that case Lord Loughborough expressly distinguished it from the case of a creditor not affected by the bankrupt laws, who recovers his debt by attachment in a foreign court, against the effects of the bankrupt; and says, that in such a case the creditor who has [**107]  so obtained his debt, cannot, on going to England, be made liable to refund that debt. And he says further, that if in the case before him, the assignees had sent a person to St. Christophers to act for them, if notice of the assignment had been given to the court of St. Christophers, and that court had preferred the title of the creditor using the process of attachment to theirs, though he should think the determination wrong, 

 [*109]  yet it could not be revoked in England. And the same principle is sustained in the case cited of Rapelje vs. Emery, in the Supreme Court of Pennsylvania, 2 Dall. 231, and in Croudson and others, vs. Leonard, in the Supreme Court of the United States, 4 Cranch 434. We have seen in this case, that the cargo of the brig Hunter, which was consigned to Silas Marean, a merchant in Martinique, was transferred by Wright to Nicholson and Williams. On the arrival of the vessel at Martinique, Benjamin Noland, the agent of Owings and Cheston, and others, caused proceedings in their names to be instituted against the cargo, to recover the amount for which they sold the flour to  [**108]  Wright. The proceedings were in rem; and in the petition it is stated, "that Wright, having formed the project of a fraudulent bankruptcy, bought the flour, and a few days afterwards stopped payment and failed, after having made to certain persons, fictitious creditors, a fraudulent conveyance of his property." The consignee of Wright appeared to the proceedings, and after counsel being heard on both sides, a judgment of condemnation, on a view of the whole case, was passed--and a fraudulent conveyance to fictitious creditors being alleged in the petition, and made a part of the foundation of the proceedings, and Nicholson & Williams being the only persons to whom a conveyance had been made, it may perhaps be presumed, that the transfer to them was examined into by the court. I shall not examine how far those proceedings (being in rem,) affect the right of recover in this case; they are in the cause. But if it should be admitted that they are not conclusive, Nicholson and Williams, not being named as parties, there were further proceedings in the same court, to which they were clearly parties. The day after the judgment of condemnation, and before it [**109]  was executed, Benjamin Nicholson, the agent of Nicholson and Williams caused proceedings to be instituted in their names, in relation to the same property, called a third opposition. The petition states, that the property was not Wright's but belonged to Nicholson and Williams, and sets out the deed from Wright to them. It reclaims the property, recites the judgment of the 11th of October 1810, alleges that it was obtained by misrepresentation, asks to be permitted to make opposition to the execution of it, and prays that it may be annulled by a new judgment. It alleges that the means of a third opposition is open to them, that they cannot too hastily put the court in a situation to pronounce on the subject of their claim, and prays to have all the parties to the first proceedings summoned to an immediate audience. The court recognized the third opposition, and ordered the parties to be summoned, to the end requested; and on the 16th of October 1810, a judgment was pronounced against the plaintiffs. But it is said that Benjamin Nicholson had no authority to bring suit, and that if he had, the proceedings instituted by him do not make Nicholson and [**110]  Williams parties to the judgment of the 11th 

 [*110]  of October 1810, and on this the argument principally hinged--The letter from Joseph H, Nicholson of the 31st of August 1810, affords the only evidence of Benjamin Nicholson's authority. But that letter is very comprehensive. It is not in truth, an instrument giving the authority to Benjamin Nicholson, but a letter to Silas Marean the consignee of the ship and cargo, informing him of the mission of Benjamin Nicholson, and of the authority with which he was clothed. It is stated in that letter, that Benjamin Nicholson goes out with full powers to take possession of the brig Hunter and her cargo, and carries with him the deed of indenture from Wright to Nicholson and Williams. Now, if Benjamin Nicholson had full powers to take possession of the brig Hunter and her cargo, it would seem to follow, that he had power to take such possession in any manner that circumstances might render necessary, whether with or without legal process. And the circumstance that he took with him the deed of transfer from Wright, connected with the mention that is made of an agent having [**111]  gone out, for the purpose of attaching the property for the use of Owings and Cheston, and others, goes a great way to show, that it was intended to arm him for legal controversy; and to enable him in a court of justice to resist, by that evidence of title in his employers, any proceedings that might be instituted against the property. For it was only in a court of justice that such evidence of title was necessary, as there was a postscript at the foot of the letter, by Wright, the consignor, to Marean, the consignee, directing him to conform to the instructions contained in that letter. Besides, Marean himself (in the language of the letter,) is requested to use all exertions for the interest of Nicholson and Williams, which is certainly an authority to assist Benjamin Nicholson in any measures he might find it necessary to adopt in order to get possession of the property. And if he had authority so to assist Benjamin Nicholson, it would seem to follow, by necessary implication, that Benjamin Nicholson had authority to pursue whatever steps might be necessary. Moreover, the petition was preferred and signed by an attorney of the court, and [**112]  the authority of that attorney to do so recognized by the court; and the judgment itself, on the face of it, is stated to be between J. H. Nicholson and N. F. Williams, &c. of the one part, and the Messrs. Ellicotts, and Owings and Cheston, of the other part. Considering Nicholson and Williams then, both in form and substance, as parties, at least to the proceedings prosecuted in their names, and the judgment thereon, the question, whether they are thereby concluded, next presents itself, which does not seem to me to be very difficult of solution. I have before assumed it as a principle, that judgments of foreign courts of competent jurisdiction, are conclusive between the same parties, upon the same matter, when brought in collaterally as this is; they are evidence of their own correctness, and conclusive of 

 [*111]  the matter upon which they profess to decide, even though such decision be manifestly unjust; and if they state the evidence from which the conclusions are drawn, no other court can inquire whether such conclusions are right or otherwise. They may, to be sure, be looked into, not for the purpose of examining if the decision is right, but [**113]  to see if the matter in controversy is decided. What then is this case? Nicholson & Williams submitted themselves to the authority and jurisdiction of the court of the first instance in the Island of Martinique, having jurisdiction over the matter. Their title to the thing in controversy in this case, was made the subject of judicial investigation, and upon a full hearing of the case, judgment was pronounced against them; not, as has been argued, a mere refusal by the court to revise or suspend the execution of its former sentence, but a solemn judgment against their title. And that is evidenced by the judgment itself, which sets out the grounds upon which it is founded. It adverts to the epoch of the purchase of the flour by Wright, and of his deed to Nicholson and Williams; to the circumstance that it was a deed of trust, and to the relationship subsisting between Nicholson and Wright, and draws the conclusion that the flour was held for the use of Wright--casts the plaintiffs from their reclamation, and condemns them to pay a fine of all the costs of suit. It is not very material whether by the process of the third opposition, Nicholson and  [**114]  Williams became parties to the proceedings that had before been instituted by Owings and Cheston, or not. It is enough that the proceedings by Nicholson and Williams were recognized and sanctioned by the court, as correct and regular, according to the laws and regulations under which the court professed to act; that their rights were investigated, and a judgment pronounced against them. It is said, to be sure, that nothing was adjudged in that case to Owings and Cheston. But what of that? Is it not the ordinary case of a judgment against a plaintiff in a question of right in our own courts, in which nothing is adjudged to the defendant but his costs, (as in this case)? And in a subsequent suit between the same parties, for the same thing, would not that judgment be just as conclusive against the plaintiff, as if he had been the defendant in the first suit, and judgment pronounced against him? I can see no difference between the cases, and it is impossible there can be any, if foreign judgments are put upon a footing with domestic. But suppose Noland, the agent of Owings and Cheston, had got possession of the cargo of the brig Hunter, without [**115]  the judgment or authority of any court, and Nicholson and Williams had instituted proceedings to recover the property, and on a full hearing of the case, judgment had been pronounced against their right--could they afterwards recover in a suit for the same thing in one of our courts? And if they could not, will it be said that Owings and Cheston are placed in a worse situation, by having obtained possession of the proceeds of the flour under 

 [*112]  the authority of a judgment in their favour, than if they had got it without? I perceive no ground for such a distinction. The proceeding by Nicholson, the agent of Nicholson and Williams, in their names, called a third opposition, has been treated in argument as an appeal from the judgment of the court of the first instance; and if so, they clearly stand in no better predicament, than if it was an original proceeding. I think the judgment of the court in Martinique is conclusive, and that the court erred in giving a different opinion.
JUDGMENT AFFIRMED. a

a See the act of December 1813, ch. 161, entitled, An act concerning Sentences of Foreign Courts.

 [**116]  

27 of 38 DOCUMENTS 

GREEN VS. M'CLELLAN.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

4 H. & J. 200; 1816 Md. LEXIS 8 

June, 1816, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court. This was an action for a trespass committed on a tract of land called M'Clellan's First Venturt. The general issue was pleaded, and plots were made under a warrant of resurvey issued for that purpose.

1. The plaintiff, (now appellee,) read in evidence at the trial, the patent of M'Clellan's First Venture, surveyed on the 20th of March 1776, for, and patented to him, on the 14th of January 1809. The patent described this tract as "beginning at the end of the N. 200 pr. line of a tract of land called Come by Chance, it being the second line of said land, and running thence N. E. by N. 44 ps." He also gave in evidence, that the said tract of land was truly located on the plots, and that the trespasses located by him were committed by the defendant before the bringing of this action. The defendant then read in evidence the patent of the tract of land called Come by Chance, surveyed on the 24th of November 1694 for, and granted to, John Richardson, on the 10th of November 1695, for 282 acres, and "lying on the west side of Jones's Falls, in Patapsco, in the woods, beginning at a bounded Spanish oak standing by the side of the falls, being a bounded [**2]  tree of a parcel of land of Thomas Durbins, and running thence W. N. W. with the said Durbins' land called Hab Nab at a Venture, 260 ps. then N. 200 ps." &c. Also the patent of a tract called Ponteney's Chance, surveyed on the 16th of September 1766, and granted to Edward Pantany on the 10th of October 1775, for 45 acres--"Beginning at the end of 44 ps. on the third line of a tract of land called Come by Chance, and running thence N. E. by N. 67 ps. N. 22 W. 10 ps." &c. And gave in evidence, that these tracts were truly located by him on the plots in the cause. The defendant then, to prove the true location of Come by Chance, produced and offered to read in evidence a commission taken out on the 13th of December 1802, by him, to mark and bound that tract, and the return and execution of said commission, as duly returned and recorded. By the return to the commission, the commissioners certify, that they had taken the oath, given the notice, and met on the land the 3d of February 1803; appointed and qualified a surveyor; took the depositions of witnesses, and caused a survey to be made of the land, and settled and adjusted the location thereof, and marked and bounded the same; and conclude [**3]  their return as follows: "We the said commissioners do further certify, that after duly considering the evidence and circumstances relative thereto, we cannot agree in our opinion, but divide thereon, therefore have made no establishment or further return thereof. In testimony," &c. Dated 10th November 1803, and signed and sealed by four commissioners. To the reading of this commission and return in evidence, for the purpose aforesaid, the plaintiff objected. And the Court, [Nicholson, Ch. J.] sustained the objection, and refused to let the evidence be given. The defendant excepted.

2. The plaintiff then offered evidence to prove, that at the time when M'Clellan's First Venture was taken up and surveyed, the taker-up thereof, in order to ascertain its place of beginning at the end of the second line of Come by Chance, ran the two first lines of that tract from the place marked A on the plots, its admitted beginning, as the needle then pointed, without any allowance for the variation of the compass, and in the manner located by the plaintiff on the plots; and then prayed the court to direct the jury, that in fixing the true location of M'Clellan's First Venture, they are not [**4]  bound to begin it at the place where they may believe the second line of Come by Chance terminates, according to what they may now find to be the true location of that tract, but that they may begin M'Clellan's First Venture at the place where they may be of opinion, from the evidence, the taker-up of that tract actually terminated the second line of Come by Chance, for the purpose of fixing the beginning of his said tract of M'Clellan's First Venture; and this direction the court gave to the jury. The defendant excepted; and the verdict and judgment being against him, he appealed to this court.  

DISPOSITION:
JUDGMENT REVERSED, AND PROCEDENDO AWARDED.  

HEADNOTES:

To prove the location of a tract of land called C, a commission for marking & bounding that tract, and the return thereof, were offered in evidence. The commissioners certified in their return to the commission, that they had taken the depositions of witnesses, and caused a survey to be made of the land, and settled and adjusted the location thereof, and marked and bounded the same, but that after duly considering the evidence, &c. they could not agree in opinion, and therefore made no establishment or further return thereof--Held, that the commission and return were not evidence.

The grant of a tract of land called M, dated in 1776, described it as "beginning at the end of the N 200 ps. line of a tract of land called C, (granted in 1695,) it being the second line of said land, and running thence N E by N 44 ps." &c.--Held, that the beginning of M depends on the true location of C, and that such beginning must be at the place or point where the N 200 ps line of C terminates--and that that termination was to be ascertained by the jury according to the evidence, and on such allowance for the variation of the compass as the jury might find to be right and proper.

That in locating M the jury were bound to begin at the place where they found the N 200 ps. line of C terminates, and could not begin at M the place where they might be of opinion, from the evidence, the taker up of that tract actually terminated the N 200 ps. line of C, for the purpose of fixing the beginning of his own tract. 

COUNSEL:
Harper, for the Appellant, on the first bill of exceptions, referred to Shield's lessee vs. Miller, (ante 6, 7.)

Martin, for the Appellee, on the first bill of exceptions, cited Drane vs. Hodges, 1 Harr. & M'Hen. 262. On the second--Tenant vs. Hambleton, 8 Harr. & Johns. 233. Carroll et al. lessee vs. Norwood, 1 Harr. & Johns. 186. Shield's lessee vs. Miller, (ante 6, 7.) Webb's lessee vs. Beard, 1 Harr. & Johns. 349. Darnall's lessee vs. Goodwin, Ibid 282. Smith's lessee vs. Volgamot, 2 Harr and M'Hen. 155. Dougherty's lessee vs. Denny,  [**5]  3 Harr. & M'Hen 430. a

a The facts of the case of Dougherty's lessee vs. Denny, 3 Harr. & M'Hen. 430. and which are not there reported, were these: On the 4th of February, 1779, Robert Harwood by deed conveyed to the lessor of the plaintiff, "all that part of a tract of land called Poplar Levell, beginning at the end of 256 1/4 perches, on the N. line of the said land, and running N. 63 3/4 perches, then W. 43 perches, then S. 30 [degrees] E. 56 perches, then 8. 17. [degrees] E. 12 perches, then with a straight line to the beginning, containing 10 acres of land more or less." The ejectment was brought for Poplar Levell. Defence was taken on warrant, and by the plots it appeared that the plaintiff located Poplar Levell, with an allowance of 5 [degrees] 45', and the defendant located that tract with an allowance of 45 minutes only. By the depositions of witnesses in the case, it was proved in what manner that part of the tract conveyed by Harwood to the lessor of the plaintiff was laid off to him, which was as the needle then pointed: and the declarations of Harwood made at the time as to what land he had sold to Dougherty, were also given in evidence. 

JUDGES:
The cause was [**6]  argued at the last term, before BUCHANAN, EARLE, and MARTIN, J. and was re argued at the present term before CHASE, Ch. J. and BUCHANAN, EARLE, JOHNSON, and MARTIN, J. JOHNSON, J., dissenting.  

OPINIONBY:
CHASE 

OPINION:

 [*203]  CHASE, Ch. J. delivered the opinion of the court. The court are of opinion, that the beginning of M'Clellan's First Venture depends on the true location of the tract of land called Come by Chance, which said beginning must be at the place or point where the north 200 perches line of Come by Chance terminates--the termination of the said line to be ascertained by the jury according to the evidence, and on such allowance for the variation of the compass as the jury may find to be right and proper; it being the exclusive right and province of the jury to decide on the proper allowance to be made for such variation according to the proof.
The court are also of opinion, that the jury were bound in locating M'Clellan's First Venture, to begin at the place where they found the north 200 perches line of Come by Chance terminated, and think the court below erred in giving the direction prayed by the plaintiff, as stated in the second bill of exceptions.  [**7]  
This court concur with that court in the opinion expressed in the first bill of exceptions.  

DISSENTBY:
JOHNSON 

DISSENT:

JOHNSON. J. This is an action to recover for a trespass alleged to have been committed by Green. the appellant, on the appellee's land called M'Clellan's First Venture.
In the trial of this cause two exceptions were taken on the part of the defendant--The first, because the court refused to permit the land commission, offered by him, to be read to the jury; but the objection to the opinion pronounced by the court on the first exception appears to have been waved in this court.
The tract of land called M'Clellan's First Venture, calls to begin "at the end of the North 200 perches line of a tract of land called Come by Chance, it being the second line of said land."
In the trial of the cause the plaintiff offered evidence to prove "that at the time M'Clellan's First Venture was taken up and surveyed, the taker up thereof, in order to ascertain its place of beginning at the end of the second line of the tract called Come by Chance, ran the two first lines of that tract from the place marked A on the plots, its admitted beginning, as the needle then [**8]  pointed, without any allowance for the variation of the compass, and in the manner by him located on the plots in the cause; and thereupon prayed the court to direct the jury, that in fixing the true location of said tract called M'Clellan's First Venture they are not bound to begin at the place where they may believe that the second line of Come by Chance terminates, according to what they may now find to be the true location of that tract." Which direction the court gave. And the question for the consideration of this court is, Whether the opinion so pronounced was correct?
In examining this question I propose to establish three propositions--

 [*204]  1st. That on principles of reason and justice it is correct that the land should be located as it was when taken up.
2d. That such a location is sanctioned by general principles of law; and
3d. That no decision has been made by either the general court, or the court of appeals, conflicting with the right of making such a location; but that they have been of an opposite character.
On the first point I apprehend it must be conceded by all, that the land actually run out and designed to be purchased, should pass [**9]  by the conveyance; and that if by any mistake, or inaccuracy of expression, a part should be left out, or more included, that a power ought to exist by which such errors might be corrected. For the land intended by both parties to be sold should pass by the deed or grant. If then it be correct, that the land intended to be purchased should pass by the conveyance, are there any general principles of law which will prevent the location of the land in question from being made, as it was, when run out? M'Clellan's First Venture was surveyed on the 20th of March 1776, and the contract then made, we are now called on to expound.
Nothing is more evident, than that every contract should depend on the law existing at the time it was made; and that the language in which a contract is expressed, should be construed to have the same meaning, as would have been given to it at the time it was used.
Let us examine the certificate in question by these rules. In the year 1776 the surveyor, when he run the land, was bound to run the anterior tract, according to the expressions of the certificate--By them he was governed; by them he was bound. If, at that period [**10]  , an action of ejectment had been brought to recover any tract of land, containing courses and distances only, no other location would have been admitted, but such as they expressly pointed out; the least deviation from them, would have excluded the reading of the patent at the trial of the cause.
It was then not merely the custom to run as the needle pointed, but such was the law of the land; and such would now have been the law, had the legislature not thought fit to have changed it.
If then in the year 1776, the beginning of M'Clellan's First Venture could only be ascertained by running the two first lines of Come by Chance at the point of the needle, and if such would have been the rule at this day, but for a legislative interposition, our attention is naturally drawn to an examination of the law, by which that change has been made; and unless, by that law, we are compelled to give a location evidently different from that which was given when the land was taken up, it would seem to follow that no departure ought to be made from that survey.
But, so far from finding the legislature disposed to vary the survey, and thereby embracing within it, or excluding [**11]  from it, land not originally included, we shall discover their 

 [*205]  sole object to have been to confine the survey to the original land, and to confirm the purchaser in the particular land taken up by him.
By the 12th section of the act passed at November session 1781, ch. 20, which recites, "that whereas land originally included by the courses and distances, expressed in the certificate of lands heretofore granted, is now excluded by the variation of the compass, which ought not to be taken from the person claiming under such survey or grant," it is in substance enacted, that on the chancellor being satisfied as to the fact, he shall refuse a patent to any other person, who hath, or may survey the land, and shall give a confirmatory grant, gratuitously, to the original taker-up.
The courts of law, although not in words, authorized to act on the subject, have gone further than the letter of the law, grounding their decisions on its equity and spirit. The chancellor was empowered to refuse to the one, and to grant to the other, but should the same not have been brought before him, as was the case in a variety of instances, then, except for the liberal construction,  [**12]  placed by the courts on this law, a junior patentee, holding land comprehended in a survey, would have retained it, notwithstanding the same was included within the lines of an ancient grant, and only excluded therefrom by the variation of the compass.
The courts of law have referred the subject to the consideration of the jury, and have left it entirely to them to determine whether there was any, and what variation; and, if they find that the land was originally included, then the elder survey and grant prevailed. Those who are conversant with the rules of the land office, know that various regulations have been made, having it for their object to confine the certificate to the land actually taken up. For that end, calls to natural visible objects were inserted; but the agents of the Lord Proprietary, discovering that by them more land was included than was paid for, adopted several schemes to prevent it, and finally that of excluding all calls, except at the place of the beginning. It was during the existence of that regulation that the present survey was made; and as it calls for no visible object, as its commencement, but only for the termination of a line of a former survey,  [**13]  the question is. How is this place to be found?
In examining this subject, we must constantly keep in mind, that the location of a junior tract, is not intended to affect the true legal location of a senior, for it can never be permitted, that by having erroneously located a subsequent tract, the location of a prior one is in the slightest degree affected; and although in the case before the court, the plaintiff has laid down Come by Chance as it was run when M'Clellan's First Venture was made, yet I wish it distinctly to be understood, that I do not mean, in the most remote manner, to intimate that such is the true location.

 [*206]  The inevitable effect of causing a tract of land taken up before the year 1781, to run to, and be governed by, the location of a tract it may call for, when each of them contain courses and distances alone, will, if the first is established with what is termed full variation, be to include in the junior survey, land not originally included, and to exclude part that was; but if one degree for variation for 20 years, will bring the respective tracts to their original location, then the commencement of the junior survey, calling for the line [**14]  of an elder for its beginning, ought to be ascertained, by correcting the elder tract for that purpose, to the date of the junior survey. Nothing is more evident than that such locations will embrace the land purchased.
It is not my intention to go minutely through the cases which have been cited; for as they have all been, so far as they bear on the present question, in favour of the opinion pronounced by the court below, which opinion I consider correct, exclusive of authorities, I might here rest my judgment.
It has been considered as somewhat novel, to found the judgment of this court on a decision of the general court. This court, as every other judicial tribunal, must have some rules to regulate their decisions; and where a case for the first time is brought before them, where can they look with more propriety for the establishment of principles, applicable to the subject, than to the late general court; for my own part, I have no hesitation in declaring, that the judgment of that tribunal generally, but more especially on the subjects of grants of land, have more influence on my mind than any English authorities whatever. And the rules laid down by them, and acquiesced [**15]  in for a length of time, must be considered as the law by which, (so far as they go,) real property has been held. I have examined the case of Webb's Lessee vs Beard, (1 H. & J. 349,) and feel myself bound to declare, that it is not so strong to establish the principle, that a junior, calling to being at the end of a line of an anterior survey, is not bound by the true legal location of such survey, as, I believed at the time, when Hambleton and Tenant was determined. Any inaccuracy which I may have made, or shall in future make, in the representation of a decision, will, as it is now, be readily acknowledged; and in the case of Tenant and Hambleton, it would have been a source of much regret if I believed such representation caused a different decision than otherwise would have been made. In that case the question depended on the location of a tract of land called Neglect--this tract called to run a certain course and distance to another tract called Elliott's Folly, &c. Elliott's Folly also had calls. The tract called Neglect was surveyed by the defendant in the cause, and in making such survey, he run Elliott's Folly, and the tracts it called [**16]  for, by course and distance, and thereby, as he apprehended, ascertained the vacant land. On the trial of the cause, the tracts called for by Neglect, were laid 

 [*207]  down by the defendant according to their calls, and by the plaintiff as they were laid down at the time Neglect was taken up. The deposition rejected by the court went to establish how they were laid down; it was rejected, on the ground of being inconsistent with the grant. But that decision was reversed.
It will be perceived, that Neglect calls for no visible object. I was under the impression that the Gleanings in the case of Webb and Beard, was in the same situation; and if so, the cases would have been strictly analogous. But in the latter case, though a tree is called for, and supported by some evidence, yet, my memory leads me to believe, that in that case it was determined, that if the proof as to the tree failed, that the beginning might be ascertained by running the tracts called for without their calls--on the ground, that as they contained a double description, that that description should be received, which comported with the facts, as they existed, when the junior survey was made;  [**17]  for, if complete evidence existed as to the tree, the patent under which the plaintiff claimed could never have been obtained, if that fact had been disclosed to the chancellor--nor, do I presume, would the counsel who conducted the case on the part of the plaintiff, ever have brought the suit, with the previous knowledge, that the tree could be established.
It is not for me to say whether those decisions ought to have any influence with this court; that is submitted to their consideration. For my own part, I have long reflected on cases of this description, and am led to think that the opinion pronounced in Tenant & Hambleton, is calculated to carry into effect the intention of the contract, as it existed at the time it was made; that it is consistent with, and supported by, general principles of law, more especially that it accords with the law in operation at the period it was entered into, and is in conformity with the provisions of the act of 1781, and that it is supported by the decisions which have been adjudged on the subject. I am, therefore, of opinion, that the judgment ought to be affirmed on both exceptions.
JUDGMENT REVERSED, AND PROCEDENDO AWARDED.  

28 of 38 DOCUMENTS 

MICHAEL vs. SCHROEDER, et al.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

4 H. & J. 227; 1816 Md. LEXIS 12 

June, 1816, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court. The appellant having petitioned for the benefit of the insolvent laws, the appellees, his creditors, exhibited to the court certain allegations against his being discharged under those laws, praying that issues in a summary way, without the form of an action, might be directed to determine the truth of the allegations. The petitioner made a suggestion, supported by affidavit, that he could not have a fair and impartial trial in that court, and prayed that the record of the proceedings might be removed to Harford county court, to be there heard and determined. But the Court, [Nicholson, Ch. J. and Bland. A. J.] being divided in opinion, did not give the direction and order as prayed. The petitioner excepted, and appealed to this court.  

DISPOSITION:
AFFIRMED.  

HEADNOTES:

Allegations by a creditor against a petitioner for the benefit of the insolvent laws, cannot be removed, under a suggestion, to an adjoining county for trial.  

COUNSEL:
Brice, for the Appellant, and by

W. Dorsey for Appellee.  

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

OPINION:

 [*227]  JUDGMENT AFFIRMED.  

29 of 38 DOCUMENTS 

COCKEY, et al. Lessee vs. SMITH.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

3 H. & J. 552; 1815 Md. LEXIS 25 

May, 1815, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court, from a judgment obtained by the defendant in that court, (now appellee,) in an action of ejectment to recover a tract of land called Franklin's Neglect and Cockey's Discovery. Defence was taken on warrant,, and plots were made. The plaintiff at the trial read in evidence a patent for Franklin's Neglect and Cockey's Discovery, granted to John Cockey the 23d of April 1803. And gave in evidence, that the same was truly located by him on the plots. It was admitted, that since the institution of this suit John Cockey, the patentee, died, and that the parties, made since his death, were his devisees and legal representatives. The defendant then read in evidence two patents, one for Gibson's Forest, granted to Miles Gibson the 3d of April 1708, and the other for Warner's Chance, granted to John Warner the 3d of March 1711. And proved that she had truly located these tracts on the plots. She further gave in evidence, that Thomas Franklin was possessed of part of these lands from about the year 1765, until the time of his death, and that those claiming under him had been in possession of them until the present time; and that she the defendant was the only [**2]  heir and representative of said Franklin. The defendant then, without having produced or offered any evidence that John Clarke had derived any title from the alleged patentees of Gibson's Forest and Warner's Chance, or that Clarke ever had been in possession of said two tracts of land, or any part thereof, offered to read in evidence a deed from Clarke to Franklin for the said two tracts of land, dated the 2d of August 1765, for the purpose of proving in what manner and at what time Franklin came into possession of said lands. To the reading this deed in evidence the plaintiff objected. And the Court, [Nicholson, Ch. J.] overruled the objection, and permitted the deed to be given in evidence for the purposes aforesaid. The plaintiff excepted; and the verdict and judgment being against him, he appealed to this court.  

DISPOSITION:
JUDGMENT AFFIRMED.  

COUNSEL:
Winder, for the Appellant; and by

Pinkney, for the Appellee.  

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

OPINION:

 [*553]  JUDGMENT AFFIRMED.  

30 of 38 DOCUMENTS 

STEVENSON vs. HOWARD, surv. of PENNINGTON'S Lessee.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

3 H. & J. 554; 1815 Md. LEXIS 26 

May, 1815, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court. This was an action of ejectment, brought on the 21st of September 1808, for part of a tract of land called Salisbury Plains, described by metes and bounds, on a joint demise for the whole of such part by J. E. Howard and J. Pennington, and on separate demises by each of them, for an undivided moiety of said part. The defendant, (now appellant,) took defence on warrant, and plots were made. The death of Pennington, one of the lessors of the plaintiff, was suggested after the issue was joined. At the trial the plaintiff gave in evidence a patent for Salisbury Plains, granted to Thomas Pert and Robert Benger on the 10th of July 1671, and that he had truly located the same on the plots in this cause. He also gave in evidence, that Thomas Rutter, (the first,) was seized and possessed of Salisbury Plains, and died so seized in 1746, having by his will, dated the 26th of September 1744, devised to his son Thomas Rutter, in tail, after his mother's death, all the remainder part of Salisbury Plains. He also gave in evidence, that Thomas Rutter, (the second,) the son of the said devisor, entered in possession of that part of Salisbury Plains devised to him [**2]  by the said will; and so being possessed thereof did, on the 23d of February 1780, convey a part of his said part of Salisbury Plains to Benjamin Griffith, containing a lot of near four acres, &c. And also gave in evidence, that the location of the said deed, by the plaintiff on the plots, was correct. He further gave in evidence a deed from Ann Griffith, daughter of Benjamin Griffith, to John Eager Howard, one of the lessors of the plaintiff, dated the 2d of September 1801, for all her right, &c. in the same land conveyed to her father by Thomas Rutter. That Benjamin Griffith died intestate on or about the year 1800, leaving six legitimate children, who are now living, one of whom was the said Ann Griffith. He also gave in evidence a deed from John E. Howard, to Josias Pennington, the other lessor of the plaintiff, dated the 25th of November 1801, for one moiety or undivided half part of part of Salisbury Plains, stated to have been conveyed to the said Howard, by Thomas W. Griffith, on the 28th of October 1801, and which was conveyed to Benjamin Griffith by Thomas Rutter on the 23d of February 1780. The defendant then prayed the court for their direction to the jury, that the plaintiff [**3]  had not made title to the land mentioned in the declaration, or any part thereof, so as to entitle him to recover. This direction and opinion the Court, [Nicholson, Ch. J. and Hollingsworth, A. J.] refused to give. The defendant excepted. Verdict for the plaintiff for one undivided twelfth part of all that part of salisbury Plains which is included in the following lines:--Beginning, &c. The defendant moved the court in arrest of judgment, and assigned the following reasons: 1. That the jury were sworn to try the issue joined between Jacob Goodtitle, (who claims by a joint demise from John E. Howard and Josias Pennington, for the whole land mentioned in the declaration,) and the defendant, and the verdict was for an undivided twelfth part of said land. 2. That the jury were sworn to try the issue joined between Jacob Goodtitle, (who claims under a several demise from John E. Howard and Josias Pennington, for one undivided moiety by each of them of the land mentioned in the declaration,) and the defendant, and there was a general verdict for an undivided twelfth part. 3. That the jury were sworn to try the issues between Jacob Goodtitle, (who claims under a joint and several demise [**4]  from John E. Howard and Josias Pennington,) and the defendant. That the death of Josias Pennington was suggested, and admitted on the record, and there was a general verdict without specifying under what issue the jury found. 4. That the verdict was not sufficiently certain for the court to render a judgment upon it. 5. That there were various uncertainties and contradictions, by reason of which no judgment could be entered. The county court overruled the motion, and entered judgment on the verdict for the plaintiff, and the defendant appealed to this court.  

DISPOSITION:
JUDGMENT AFFIRMED.  

COUNSEL:
Martin and Winder, for the Appellant. 1. The verdict does not state on which of the counts in the declaration it was found; and as there were several counts, two of them on the demises of several lessors, the verdict not describing under which count it was found, was so uncertain that no judgment could be entered on it.

2. By the will of T. Rutter a life-estate was given to his wife, and there was no proof at the trial that she was dead, or that she had conveyed away her life-estate to the lessors of the plaintiff, or those under whom they claimed. In the devise to the son, after his mother's death,  [**5]  there is no description of what part of the tract was devised to him. The son could not convey such an estate as would enable the plaintiff to recover, as it shall be intended that the devisee for life was alive, unless the contrary is shown. 12 Vin. Ab. tit. Evidence, 124. a. b. 56. Nor was the deed from T. W. Griffith, to J. E. Howard, recited in the one from Howard to Pennington, offered in evidence. B. Griffith having died intestate, leaving six children, his real estate descended to the whole of them under the act of 1786, ch. 45, and no one of the children had any right to the land, unless allotted to such child under that act. Whether an action of ejectment can be brought by any one of them, or by any person claiming under any such child, is a question not decided.

Harper, for the Appellee. 1. No other verdict could be given. But if it be erroneous, it is cured by the act of 1809, ch. 153, s 2, which provides, that if there is one good count to which the evidence will apply, and there is a general verdict, it is to be supposed the verdict meant to apply to that count.

2. The question respecting the devisee for life was not set up or thought of in the court below; if [**6]  it had it could have been easily proved that she was dead. The devise was to her in 1744, when she was at least 25 years of age, having been married, and was the mother of four children, as appears by the will. If she had been living at the trial, she would have been upwards of 90 years of age. She must therefore, from the length of time, be presumed to be dead.  

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

OPINION:

 [*556]  THE COURT affirmed the judgment of the County Court. On the second point raised, they said that the life-estate, set up to defeat the action, from the length of time that had elapsed before the suit was brought, must be considered as having expired before the ejectment was brought.
JUDGMENT AFFIRMED.  

31 of 38 DOCUMENTS 

HOWARD VS. ROGERS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

4 H. & J. 278; 1817 Md. LEXIS 17 

June, 1817, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from a decree of the Court of Chancery. The appellant being the proprietor of all the lands around the public square in the city of Baltimore, as located on the several plots exhibited in the cause, and also of the grounds around the half square to the south of the public square, had, by deeds to Goldsborough and Paca, appropriated the square to public uses, and had declared and evinced the same in other contracts and acts, and particularly in plots which he had caused to be made of his property, and which plots had been copied into a map of the city, and its vicinity, published in the city in the year 1792. He afterwards, on the 25th of August 1796, made a conveyance to the appellee of a lot of ground in the following words: "Beginning for the same at the south west corner of Eutaw and German streets, and running thence south binding on Eutaw street one hundred and fifty feet to Cider Alley, thence west binding on Cider Alley continued three hundred feet to a street known by the name of Paca-street, thence north binding on Paca-street one hundred and fifty feet to German-street continued, which street bounds on the south the square intended for public uses, thence east binding [**2]  on said street, and fronting the said square. to the beginning." There had been a deed prepared before and executed by the appellant, and delivered to the appellee, in which the expressions relative to the public square were omitted; and the appellee returned it to the appellant, objecting to it on that account, and requiring the words to be inserted for the purpose of giving his lot the privilege of fronting the square, and in consequence thereof the appellant caused a new deed to be drawn, containing the expressions above mentioned. The bill claimed that the appellant should be enjoined from applying that square to private uses, but should be obliged to keep it open for public purposes.

KILTY, Chancellor, (September term 1815.) The bill was filed to obtain an injunction against the defendant, restraining him from leasing, selling, improving, or building upon, a certain piece of ground alleged therein to have been intended as a public square, or from appropriating it to any other use. And a decree was prayed to compel the defendant to remove from the said square all buildings and erections thereon made, and to appropriate the square to public uses according to his contract. The [**3]  injunction was granted. Since which the defendant has put in his answer. Testimony has been obtained by commission and agreement, and the case was set down for final hearing. It was argued at the present term by counsel on each side, and the proceedings have since been fully considered. Although it may possibly be a case of some hardship or loss to the defendant, the chancellor is of opinion, on the whole, that the complainant is entitled to relief, chiefly on the expressions contained in the deed of the 25th of August 1796, which are not contravened by any other agreement, supposing such to be sufficient against the deed. The first agreement or conversation respecting the lot bounding the square on the north No. 992, is not of much importance, and is not considered as having been obligatory on the defendant, or to have absolutely induced him to make the sale in question; though it may serve to show the wishes of the complainant, and the disposition of the defendant to comply with them, and the apparent intention as to the square. The circumstances attending the contract for the lots on German-street, and the conversation between the parties, would be more material if this was a bill [**4]  to compel a specific performance of the parol agreement: in part executed. But the defendant has by his deed said that German-street then bounded on the south the square intended for public uses, and described the last line as fronting the said square. These expressions imply an absolute intention, and the defendant cannot set up by his answer, or prove a different intention or a conditional, if not made known to the complainant and assented to. And he has not produced, in order to rebut the equity prayed, any proof that the contract contained in the deed has been waived or valued by the parties. The strongest ground for supposing it waived by the complainant would be the length of time; but that though of some weight is not judged sufficient for the purpose, even connected with his knowledge of the lease to Roberts, because no day was fixed as to the opening or final clearing of the square, and the terms of the lease were not incompatible with its future establishment. And the delay may be accounted for from other circumstances. It is to be observed also that although there has been a considerable degree of remissness and a want of explicitness in both parties, the complainant applied [**5]  by letter of October 1808, to the defendant respecting the square, the answer to which neither denied nor admitted expressly his right. The deed was not only from its nature the solemn act of the grantor, but was made after time for reflection, and as the answer says not without hesitation, which excludes the idea of surprise as stated by the defendant's counsel, and both parties well able to contract. It remains then to consider the main ground of defence, to wit, that it is not such a contract as that a court of equity ought to decree a specific performance of it. This objection does not appear to be supported. It was a fair, just and reasonable object with the complainant to have his lots fronting an open square, and it rested with the defendant to repel that object in his contract or (if there had been any misconception) in his deed. The agreement was sufficiently certain as to the location of the square from the plot exhibited (which plot is also material on the main question) and it was mutual and on a sufficient consideration from the price paid for the lots. And the establishment of such a square is not inconsistent with the general policy of a well regulated society. The agreement [**6]  is also free from fraud, circumvention or surprise on either side--The parties contending only for their respective rights Neither will the performance affect the rights of other persons, the defendant having reserved to himself the power of keeping open the square. The consequence of a decree for the complainant will be that the defendant may lose the advantage which a different appropriation of the ground might give him, which is a circumstance that cannot weigh against his contract. On the other hand, by a dismissal of the bill the complainant would lose the object of his purchase as claimed by him, and apparent from the deed which he required and obtained. And his lots would be shut in by other buildings instead of fronting an open square which he had chosen. And notwithstanding the opinions expressed by the witnesses, this court ought not to refuse a suitor his just rights, because other persons think the enjoyment of them would be injurious to him, inasmuch as men are generally the best judges of what will benefit themselves. It is not recollected that any thing was said in the argument respecting the temporary buildings on a part of the square, which are prayed to be removed.  [**7]  But such removal would of course be necessary in opening the square, and would probably take place to make way for other improvements, supposing the decision to be in favour of the defendant. Decreed, that the injunction be and the same is hereby made and rendered perpetual. Decreed also, that the defendant, his agents, servants, and all others employed by him, be and they are hereby prohibited and perpetually enjoined from using or appropriating the piece or parcel of ground mentioned and described in the complainant's bill as being bounded, &c. from any other use or purpose than as a public square; and that they do perpetually and for ever hereafter surcease, desist, and refrain from selling, leasing, improving, building upon, or in any other manner appropriating or using the said piece or parcel of ground so as aforesaid described, for any other use or purpose than a public one. And that the defendant, within twelve months from the date hereof, do remove and take from the said public square, all houses, buildings and erections, of every description, now erected, standing, or being on the said public square, so as aforesaid described, or any part thereof. From which decree the defendant [**8]  appealed to this court.  

DISPOSITION:
DECREE REVERSED.  

HEADNOTES:

J E H by deed of bargain and sale, granted and conveyed to N R a lot or parcel of ground, part of Lunn's Lot, and located it as "beginning for the same at the S W corner of E and G streets, and running thence S, binding on E street, 150 feet to C alley, thence W binding on C alley continued 300 feet, to P street, thence N binding on P street 150 feet to G street continued, which street bounds on the S, the square intended for public uses, thence E binding on said street from the said square to the beginning," On a bill filed in chancery by N R against J E H, for an injunction to restrain him from applying to private uses, the square intended for public uses, but that he should be obliged to keep it open for public purposes--Held, that it was the plain intention of the parties, to be collected from the words of be deed, that the lot therein described should pass, and all J E H's right and interest therein, and nothing else. In the construction of a deed the intention of the parties is to prevail if not incompatible with some rule or maxim of law The intention is to be collected from the words of the deed as expressive of and defining the meaning of the parties.

The deed is to be construed most favorably for the grantee, if there is any doubt about the meaning of the parties.

Parol evidence is not to be admitted, nor extraneous circumstances introduced in the exposition of deeds, except in the single instance of a latent ambiguity. 

COUNSEL:
Harper and Taney, for the Appellant. 1. Are the words in the deed from the appellant to the appellee of the 25th of August 1796, a covenant on the part of the grantor, that the said square shall be applied exclusively to public uses?

2. If such be the construction, is it such a contract as equity will compel him specifically to perform?

On the first point they referred to Sugd. 87, 88, 90, 91, 102. 1 Fonbl. 145, (note b,) 149, (note c.) Shep. T. 253, (note 1.) 1 Pow. on Cont. 385.

On the second point they referred to 2 Pow. on Cont. 221, 222. 1 Fonbl. 147, (note,) 149, (note c,) 356, 358, (and note.) Sugd. 147, 148.

Martin, Winder and Winchester, for the Appellee, referred to Shep. T. 50. 1 Pow. on Cont. 385. Buchanan's Lessee vs. Steuart, 3 Harr. & Johns. 329.  

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

OPINIONBY:
CHASE 

OPINION:

 [*281]  CHASE, Ch. J. delivered the opinion of the court. The question to be decided in this case lies within a narrow compass, and must depend on the true construction of the deed from Howard to Rogers, and that construction is to be determined [**9]  by resorting to some plain well known established rules and principles of law. The intention of the parties is to prevail, if not incompatible with some rule or maxim of law; this is considered as the polar star in expounding deeds--The intention to be collected from the words of the deed as expressive of and defining the meaning of the parties--The deed to be construed most favorably for the grantee, if there is any doubt about the meaning of the parties. Parol evidence is not to be admitted, nor extraneous circumstances introduced in the exposition of deeds, except in the single instance of a latent ambiguity. These principles will guide us to a right decision in this case.
Col. Rogers purchased a lot of ground of Col. Howard, and by the deed under consideration, Howard conveyed the lot to Rogers. What are the words of the deed which relate to this question?
Col. Howard grants a lot or parcel of ground, part of Lunn's Lot, to Col Rogers, and locates it in the following manner, to wit: "Beginning for the same at the south west corner of Eutaw and German streets, and running thence South, binding on Eutaw-street, one hundred and fifty feet [**10]  to Cider Alley, thence West, binding on Cider Alley continued, three hundred feet, to a street known by the name of Paca street, thence North, binding on Paca street, one hundred and fifty feet, to German-street continued, which street bounds on the south the square intended for public 

 [*282]  uses, thence East binding on said street, and fronting the said square to the beginning."
There is not any thing mentioned in the granting part of the deed but a lot of ground part of Lunn's Lot. These words "Beginning," &c. are a description of the lot, and designate the location of it, and shew in a plain manner where it lies. The words "which street bounds on the South the square intended for public uses," were inserted to render the description more certain, and identify more plainly the said lot; these words convey no right, interest or privilege in the square. The words "binding on the said street, and fronting the said square to the beginning," are also words of description, and are susceptible of the same answer.
The deed in this case is free from doubt. Indeed there is not the semblance of ambiguity in it; and parol evidence cannot be received to [**11]  explain the deed, or to shew that any thing passed but what is mentioned in the deed. It was the plain intention of the parties, to be collected from the words of the deed, that the lot therein described should pass, and all Col. Howard's right and interest therein, and nothing else.
The court are of opinion, that the decree of the court of chancery be reversed, with costs to the appellant, in the court of chancery, and in this court.
DECREE REVERSED.  

32 of 38 DOCUMENTS 

LANSDALE'S EX'X. vs. GHEQUIERE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

4 H. & J. 257; 1817 Md. LEXIS 9 

June, 1817, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from a decree of the Court of Chancery. The bill filed on the 1st of August 1810, stated that R. Ratien and N. Konecke, partners in common in Baltimore, finding themselves, from considerable losses, unable to meet their engagements, assembled their creditors, and offered to sell to them, at stipulated prices, considerable property, both real and personal, in full satisfaction of their debts. The creditors, among whom was T. Lansdale, the testator of the appellant, acceded to the proposal, and appointed A. Moncrieff, G. Repold and the appellee, trustees on their behalf, to receive and dispose of the property, to whom Ratien and Konecke accordingly, on the 31st of December 1795, executed an agreement, stipulating the sale of their property on the above terms. A part of this property consisted of a lot, wharf and warehouse, on Fell's Point. estimated in the arrangement at $ 14,000. Ratien and Konecke were authorized to sell several pieces of the property assigned to their creditors, and among them this wharf property, at a higher price than the stipulated amount, if they could. They contracted with T. Lansdale, the testator, to sell him this wharf property for $ 14,000, payable [**2]  in 6, 12 and 18 months, from which was to be deducted any dividends to which Lansdale, as a creditor of Ratien and Konecke might be entitled. This sale was affirmed by the trustees. Ratien and Konecke had on the 3d of September 1793, bought this property from R. B. Latimer, the agent of the state, it having been confiscated, and held his bond for the conveyance, which had not, however, been made, although they had paid the whole purchase money. The contract with Lansdale was verbal, but he received at the time an assignment of the bond of conveyance, (upon which he afterwards, on the 17th of December 1796, obtained a deed from the chancellor, who acted for and on behalf of the state,) and possession of the property, and held it until the 16th of February 1799, when he sold it to W. Bruff, D. Chambers and B. Baker, jointly, for $ 11,000, payable $ 4,000 in 6 months, $ 2,000 in 12 months, $ 2,000 in 18 months, $ 2,000 in 24 months, and $ 1,000 in 30 months, with interest. On the 30th September 1796, and the 1st of March 1803, Lansdale became entitled to dividends from the proceeds of Ratien and Konecke's property, to the amount, for the first dividend, of $ 4,666 67, and for the other [**3]  $ 1,425 47, which sums were credited to him on account of the purchase of the property. No other payments were made by him, nor by his executrix since his death. Bruff, Chambers and Baker, paid to Lansdale, on account of their purchase from him, various sums of money, which left due on the 14th of April 1802, including interest, only the balance of $ 3,950 60. If the above balance be paid to the trustees of Ratien and Konecke, there will then remain a balance due from the estate of Lansdale to the trustees on the 1st of March 1803, of $ 7,063 77, with interest from that date. The bill seeks to have the whole balance paid by the executrix of Lansdale, or that the property be sold to pay it, claiming to have a lien on it. Bruff, Chambers and Baker, were ignorant of the claim of the trustees when they purchased and paid part of the purchase money. T. Lansdale died in January 1803, having made a will, and devised his property in certain proportions to his wife Cornelia, the executrix, and his five children, to wit, W. M. Lansdale, Violetta Lansdale, Cornelia, who intermarried with P. I. Thomas, Eliza, who intermarried with J. F. Cox, and P. Lansdale. The will begins, "When all my just [**4]  debts and funeral expenses are paid, I devise and bequeath as follow," &c. and then proceeds to dispose of his estate. The bill alleges that W. M. Lansdale was the agent of the executrix in settling the estate of the testator, and he frequently and fully, within two years before the filing of the bill, admitted the claim, and promised adjustment and settlement, and gave an order on Bruff and Chambers for a part of it. Cornelia, the widow and executrix, and Violetta and Philip, resided at the time of filing the bill in the District of Columbia, and Eliza with her husband J. F. Cox in New York. B Baker and A. Moncrieff, died before the filing of the bill, and G. Repold and W. Bruff died since. The bill was filed by Repold and Ghequiere, as surviving trustees, against the executrix, and heirs and representatives of T. Lansdale, and also against Bruff and Chambers. Chambers, W. M. Lansdale, P. J. Thomas and wife, and C Lansdale and P. Lansdale, appeared and answered the bill. They do not deny or confess the allegations in the bill, but profess ignorance, and leave the complainants to establish their case by proof. The answer of W. M. Lansdale, which by consent was also to be taken as the [**5]  answer of the executrix and of P. Lansdale, concludes thus: "He therefore relies on length of time as a bar to any relief which the complainants might otherwise have had, and claims the benefit thereof at the trial." With respect to the nonresident defendants, V. Lansdale and J. F. Cox and wife, who did not appear or answer, the bill was taken pro confesso. The allegations of the bill were fully supported by the proof taken under the commission issued in the cause. One of the witnesses examined was R Ratien. James P. Boyd, Esquire, another witness, proved that W. M. Lansdale, as the agent of his mother, frequently promised the witness, as the complainant's counsel, to settle the claim, and that the only difficulty was to ascertain the balance due.

The auditor stated an account by the order of the chancellor, to which these exceptions were taken. 1. That the claim of the estate of T. Lansdale against Chambers cannot be adjusted in this court. 2. That there is no legal and competent proof of the price at which T. Lansdale bought the property, the testimony of R. Ratien being in admissible on the ground of interest. 3. That the evidence afforded by the deed of the chancellor to Lansdale [**6]  of the payment of the purchase money, is disregarded. 4. Because the dividend, to which Lansdale was entitled, of Ratien and Konecke's property, is not legally ascertained, it being done by the complainants and Ratien.

KILTY, Chancellor, (July Term 1815.) The difficulties attending this case have arisen from the careless manner in which the sale was made to T. Lansdale by the mere assignment of the bond of conveyance from the state's agent, (to save expense as is alleged in the bill) without any written agreement; and the bond of conveyance is not among the proceedings. As the decree will be in the first place against the executrix, it is necessary to remark on the answer of W. M. Lansdale, which by agreement is to be taken for her answer also. This is not the usual way of taking an answer, but as it is agreed to by the parties, it is presumed that no exception will be taken to it. The chancellor has considered the objections to the competency of the testimony of Ratien, and is of opinion that they are not supported by what appears. There is no proceeding against Ratien and Konecke under any insolvent law, but they made the agreement, which is exhibited and proved, with the trustees [**7]  appointed by the creditors. By this agreement they made an absolute sale, and the trustees purchased the property in question, and Ratien and Konecke were thereby released from debts to that amount, whatever might arise to the trustees for the property. By the agreement Ratien and Konecke were to sell the wharf, &c. for the trustees, provided more than the $ 14,000 could be obtained. They sold it for only that sum, but the trustees have thought proper to affirm their act, and it does not appear that they are interested in the event of this suit. The answer admits the sale in some degree, but does not admit the price.

As to the plea of limitations or the insisting on it in the answer, it is to be observed, that at law the least acknowledgment takes the demand out of the statute or act, and by a parity of reasoning, there seems to be a sufficient acknowledgment in the answer to have that effect. The trust created by the will is also relied on. Nothwithstanding the reversal of the decree in the case of Blakeway vs. The Earl of Stafford, 2 P. Wms. 373. the chancellor is of opinion that the doctrine recognized in Precedents in Chancery, and other authorities, as to the [**8]  trust created by a charge on the estate for payment of debts, and their being thereby taken out of the statute of limitations, is not overruled or changed. That such charge may be made without express words, as in the case of King vs. King & Ennis, 3 P. Wms. 358, in which the devise was "that after all the testator's debts paid, the rest and residue of his real and personal estate should go to his son;" and that although the cases generally speak of charges on the real estate, a devise of the personal estate, either express or implied, would have the same effect; and would not be merely void, as suggested in the note in the case of Jones vs. Strafford, 3 P. Wms. 89, but would form rather a stronger ground.

Although the property purchased is clearly liable to the sum remaining due from Chambers, and probably for the whole of the balance due to the surviving trustee, it seems to be the most proper course to decree the payment in the first place from the personal assets of T. Lansdale, leaving his representatives after the payment, to recover what is due from Chambers--More especially from the letters of W M. Lansdale exhibited, and his order on Bruff and [**9]  Chambers to pay the balance due from them towards the present claim, by which it appears that T. Lansdale had received £  3159 1 3 for the warehouse in question. The prayer of the bill also is that the personal estate of T. Lansdale should be first resorted to, and on failure thereof his real estate, and particularly the warehouse sold, on which a lien is claimed. The answer admits a sufficiency of assets, and the auditor's report has ascertained the amount. Exceptions have been filed to that report, which have been considered on the final hearing, and are adjudged insufficient. In regard to the exception as to the amount of the dividends of T. Lansdale as a creditor of Ratien and Konecke, it is to be remarked, that it was incumbent on the defendants to show the amount of them. Decreed, that the defendant, C. Lansdale, executrix of T. Lansdale, pay to the complainant, or bring in, &c. the sum of $ 3950 60 with interest thereon from the 14th of April, 1802; and also the sum of $ 7063 77, with interest thereon from the 1st of March 1803, and costs. From this decree the defendant, C. Lansdale, appealed to this court.  

DISPOSITION:
AFFIRMED.  

HEADNOTES:

R and K being unable to meet their engagements, assembled their creditors, and offered to sell to them, at stipulated prices, considerable property, both real and personal, in satisfaction of their debts, to which their creditors assented, and A, R and G, were appointed trustees to make sale of the property, and R and K conveyed it to them on the above terms. A part of the property R and K were authorized to sell, and they did contract to sell to T L, one of the creditors, such part, which sale was confirmed by the trustees, and a deed executed therefor to T L. On a bill filed by the trustees against the executrix of T L, to recover the purchase money, or a sale of the property, &c. they claiming to have a lien on it. Quere whether or not R is a competent witness?

Will the acknowledgment of the agent of an executrix take a case out of the act of limitations? Quere.

Will the following expressions in a will revive a debt due from the testator, which was barred by the act of limitations, viz. "When all my just debts and funeral expenses are paid, I devise," &c.? Quere 

COUNSEL:
Magruder and Stephen, for the Appellant. 1. The first [**10]  question is, whether this court ought to consider the acquiescence in this case a presumptive satisfaction? In Sturt vs. Mellish, 2 Atk. 610, Lord Hardwicke considered an acquiescence of 14 years sufficient for that purpose. In England the time of limitation is six years, in this state it is three years. By analogy the ground to presume satisfaction is much stronger in this case, than it was in the case referred to.

2. The second question is, whether this debt can be revived by the supposed trust contained in the will? In Lacon vs. Briggs. 3 Atk. 105, Lord Hardwicke said "there must be a direct admission of a debt to take it out of the statute of limitations." It seems to be the doctrine of a court of equity that a trust shall only take a debt out of the operation of the act of limitations, where the proof of the debt is clear and unquestionable, not where an account is to be taken. At law limitations is a complete bar. The only ground upon which a trust in equity will take the case out of the operation of the act of limitations, is that the debt is due in equity and conscience. A debt can only be due in conscience where the proof is clear and unquestionable. If the debt be doubtful [**11]  it cannot be conscientious. Lewis vs. Bacon, 3 Hen. & Munf. 89. Smith vs. Porter, 1 Binny's Rep. 209.

8. Ratien is not a competent witness in this case.

Winder and Moale, for the Appellee. The questions are, 1. Whether the appellee has stated and proved a case which entitles him to the relief prayed?

2. Whether if his case in point of fact and law be sufficient, it is not barred by limitations?

1. Under the first question the competency of Ratien as a witness will be involved. He can be incompetent only upon the ground of interest. He must either gain or lose by the event of this suit. He cannot gain, because he hath parted with all his right and estate in the property. It was an absolute sale to the trustees, unconditional, without any residuary interest or claim or trust for his benefit.

2. The acknowledgment by W. M. Lansdale, one of the devisees and the agent of the executrix, takes the claim out of the act of limitations, and rebuts all presumption of payment from length of time. They referred to Burt vs. Palmer, 5 Esp. Rep. 145. Matthews vs. Haydon, 2 Esp. Rep. 529. and the case of Palethorp vs. Furnish, there cited. 4 Bac. Ab. tit Limitation of Actions,  [**12]  (E 8) 484, and the cases there referred to.

3. By the will of T. Lansdale a trust was created for the payment of his debts. The will directs "and when my just debts and funeral charges are paid, I give and devise," &c. These words raise a trust for the payment of debts. This devise charges the real estate with the payment of all debts due from the testator, and creates a trust to be executed by his executrix for that purpose, and his creditors are the cestui que trusts. Trott vs. Vernon, 2 Vern. 708. S. C. Prec. in Chan. 430, Bowdler vs. Smith, Prec. in Chan. 264. Newman vs. Johnson. 1 Vern. 45. Beachcroft vs. Beachcroft, 2 Vern. 690. Gilb. Eq. Rep. 111. Harris vs. Ingledew, 3 P. Wms. 91. Prec. in Chan. 37. Wareham vs. Brown, 2 Vern. 153. Parker vs. Wilcox, 8 Vin. Ab. 439, pl. 25. A trust thus created hath been held to revive a debt barred by the statute of limitations. Anon. 1 Salk. 154. Andrews vs. Brown, Prec. in Chan 385. Gofton vs. Mill, Ibid 9. S. C. 2 Vern. 141. Trueman vs. Fenton, 2 Cowp. 548. Lacon vs. Briggs, 3 Atk. 107. Blakeway vs. Strafford, 2 P. Wms. 373. Jones vs. Strafford. 3 P. Wms. 89, (and note 1.) Oughterloney vs. Powis, Ambl. 231. 4 Bac. Ab. 484. 7 Bac. Ab.  [**13]  tit. Uses & Trusts, 138. Stackhouse vs. Barnston, 10 Ves. 453.

Magruder in reply.  

JUDGES:
The cause was argued before CHASE, Ch. J. and BUCHANAN, EARLE, JOHNSON, MARTIN and DORSEY, J.  

OPINION:

 [*261]  DECREE AFFIRMED.  

33 of 38 DOCUMENTS 

FARROW, et al. VS. TEACKLE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

4 H. & J. 271; 1817 Md. LEXIS 13 

June, 1817, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Chancery. The bill of the complainant, (now appellee,) stated that C. Farrow, one of the defendants, (and one of the appellants,) on the 10th of October 1805, purchased of Guest, Atterbury & Co. of the city of Baltimore, goods, &c. to the value of $ 1537 72, for which he gave them his promissory note payable to them, or order, six months after date, which note was by them, for a valuable consideration, endorsed to the complainant. That Farrow, on the 21st of November 1806, purchased of L. D. Teackle, of Princess Anne, other goods, &c. to the value of $ 1000, for which Farrow executed his bond to Teackle, payable on or before the 1st of January 1808, which bond was afterwards, on the 28th of May 1807, for a valuable consideration, assigned to the complainant agreeably to law That Farrow, instead of applying the proceeds of the said goods, &c. to the extinguishment of the debts which had been created by their purchase, invested the same in certain lands then belonging to J. Fleming, which lands Farrow, on the 25th of June 1807, caused to be conveyed to his children, Juliana and Mary, infants under the age of five years, which said conveyance was further assured to them by [**2]  deeds dated the 2d of July 1808, and the 21st of March 1809. That Farrow, regardless of his promise and obligation, made no provision whatever for the payment or performance of either, but with intent to defraud the complainant, made application to the court of Somerset county for the benefit of the insolvent laws of this state, That the complainant caused suits to be instituted on the promissory note and bond, upon which judgments were obtained against Farrow. The bill prayed for a subpoena to Farrow, and his two children, Juliana and Mary, to appear, &c. and then and there answer the premises, and abide by such decree as shall be made, &c. The infants answered by their guardian appointed for that purpose by the court, and which is not necessary to be stated. Farrow by his answer admitted the purchase of the goods, and his note and bond therefor. That on the 16th of November 1805, he purchased of J. Fleming a tract of land, for which he paid the whole amount of the purchase money in the ensuing year. That the said land was conveyed to his daughters, as stated in the bill; but he denies that the same was done with the intention to defraud, but was done to prevent his wife, from whom [**3]  he had separated, from claiming dower therein. That L. D. Teackle had undertaken, by the agreement exhibited, to pay the debt to G. A. & Co. and that he always believed the debt had been paid, until the suit was brought to recover the amount from him. That he did not become insolvent until 1810, and that his insolvency was occasioned by losses which took place long after the said conveyance. That L. D. Teackle and G. A. & Co. have also become insolvent, and he believes the assignments of the note and bond have been made to the complainant by a fraudulent collusion between the complainant, L. D. Teackle and G. A. & Co. Testimony was taken under a commission, and the cause argued, &c.

KILTY, Chancellor, (December Term 1815,) Decreed, that the several deeds of conveyance from J. Fleming to Juliana M. Farrow, and Mary J. Farrow, the defendants, be cancelled, vacated and annulled, and made of no effect, as fraudulent and void; and that the equitable interest of C. Farrow, the defendant, of and in the lands mentioned in the said deeds be sold, &c. From which decree the defendants appealed to this court.  

DISPOSITION:
AFFIRMED.  

HEADNOTES:

Voluntary conveyances cancelled, vacated and annulled, being fraudulent and void as to creditors

Where it was unnecessary to make an assignor and a trustee parties to a bill in chancery.  

COUNSEL:
MAGRUDER, for the Appellants, contended, 1. That the proper parties [**4]  had not been made; that the assignors of the bill and bond, and the trustee of Farrow, who had become an insolvent debtor, should have been made parties. He referred to Coale vs. Mildred, 3 Harr. & Johns. 278. 2. That voluntary conveyances are valid against creditors, unless they can prove that sufficient property was not left to pay the debts. He cited Newl. on Cont. 384. Hamilton vs. Greenwood, 1 Bay's Rep. 173. Mitf. Plead. 114. 3. The bill does not contain sufficient matter. If relief is claimed on the ground of fraud, fraud must be alleged. Here it is not alleged. He referred to James vs. M'Kernon, 6 Johns. Rep. 543.

J. Bayly, for the Appellee. This proceeding is under the act of 1794, ch. 60, s. 10, by creditors. All the necessary parties are before the court. The facts set forth in the bill, if true, establish a fraud, for fraud is an inference of law from facts and circumstances. The consideration in the deeds are not meritorious. It must be natural love and affection. Farrow's object was to defraud his wife of her dower. Before his divorce he married again, and had the children to whom he had the land conveyed. It was a conveyance to an adulterous illegitimate offspring.  [**5]  He referred to Greenhow vs. Coults, 4 Hen. & Munf. 485. Hamilton vs. Russell, 1 Cranch, 309. The trustee need not be a party. The property was not in him, but in the children, and the conveyance to them, as between them and the father, was valid, and therefore, if on a sale there should remain a surplus, such surplus is not to be paid to the father or his trustee, but to the children. If the property is sold under a decree of the chancellor, then the trustee appointed by him supersedes the other trustee--He is to sell, and the chancellor to distribute--Cui bono then make the trustee a party? What is to pass, over which he had any control, and what is he to receive.  

JUDGES:
The cause was argued before CHASE, Ch. J. and BUCHANAN, JOHNSON, and DORSEY, J.  

OPINION:

 [*273]  DECREE AFFIRMED.  

34 of 38 DOCUMENTS 

BROWN vs. WARRAM.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

3 H. & J. 572; 1815 Md. LEXIS 33 

June, 1815, Decided 

PRIOR HISTORY:
 [**1]   ERROR to Queen Anne's County Court. This was an action of assumpsit on a promissory note. The defendant (now defendant in error,) pleaded non assumpsit, and issue was joined. At the trial the plaintiff, (now plaintiff in error,) produced in evidence the following promissory note, to wit: "Baltimore, May 30th, 1810. For value received, we promise to pay Hiram Brown, or to his heirs or assigns, the sum of one hundred and eighty dollars, on or before the 1st day of June 1811, with legal interest from the above date.

Witness

S. Wilmer."

Lewis Bruen.

William Warram.

And produced the subscribing witness Simon Wilmer, who proved the execution and delivery of the said note by the defendant. The defendant then prayed the court to instruct the jury, that the evidence offered by the plaintiff was not sufficient to sustain his action. Which direction the Court, [Purnell and Worrell, A. J.] accordingly gave. The plaintiff excepted; and the verdict and judgment being against him, he brought a writ of error to this court.  

DISPOSITION:
JUDGMENT REVERSED, &c.  

COUNSEL:
Chambers, for the Plaintiff in error, cited Blackwell vs. Ashton, Allyn, 21. Holdwick vs. Chase, Ibid 42. Putt vs. Vincent,  [**2]  1 Vent. 76, 77. Putt vs. Nosworthy, Ibid 135, 136. Boson vs. Sandford, Skin. 280. S. C. 2 Salk. 440, S. C. Carthew, 58. Bull. N. P. 158. Rees vs. Abbot, 2 Cowp. 832. Rice vs Shute, 5 Burr. 2611. Cabill vs. Vaughan, 1 Saund. 291, (note 4.) Abbot vs. Smith, 2 W. Blk. Rep. 947. Wright vs. Hunter, 1 East, 20. Govett vs. Radnidge, 3 East, 68, 69. Harrison vs. Jackson, 7 T. R. 206. Scott vs. Goodwin, 1 Bos. & Pull. 72. Robinson vs. Fisher, 3 Caine's Rep. 99; and Brown vs. Belches, 1 Wash. Rep. 9.

Carmichael, for the Defendant in error, cited 3 Bac. Ab. 691. Hill vs. Aland, 1 Salk. 215. Bull. N. P. 145, 152, 274; and Leglise vs. Champante, 2 Stra. 820.  

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

OPINIONBY:
JOHNSON 

OPINION:

 [*573]  JOHNSON, J. The defendant could not, to defeat the action on the general issue, rely on the note being joint, but if he intended to avail himself of that circumstance he ought to have pleaded it in abatement. For the note being joint did not prove that the defendant had not assumed, and assumed, although another also assumed; there was no variance of course between the allegata and probata.
JUDGMENT REVERSED, &c.  

35 of 38 DOCUMENTS 

WALLS VS. HEMSLEY, et al.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND, EASTERN SHORE 

4 H. & J. 243; 1817 Md. LEXIS 7 

June, 1817, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Queen Anne's County Court. This was a petition for freedom, preferred by the appellees against the appellant. The general issue was pleaded.

1. At the trial the petitioners proved by G. Griffin, that some time before the surrender of York Town to the American army, the witness had gone to James River, with one captain J. Sweat; that he was afterwards transferred to the Baltimore Galley, and after the surrender of the British he again went on board captain Sweat's vessel and went into York River. That about two or three weeks after the said surrender, he left York Town; that before he left there he had been on shore at Gosport, where he had seen negro Suck, the mother of Henny, one of the petitioners, selling cakes and beer without control; and that he saw her repeatedly afterwards selling cakes and beer at the shore of the river at York Town, until the day before captain Sweat sailed, when Suck was brought on board his vessel by five or six men at about 9 o'clock at night, and purchased by Sweat. That another black woman was brought on board captain Sweat's vessel by the same persons, who was released and set on shore in consequence of her cries and screams. That [**2]  Sweat had informed Suck that he would make her his wife. That Suck had said, during her passage to Maryland, that she was sorry she had come away, as she was free in Virginia, and had a white husband there. On cross examination, the witness was asked if he had heard the story of kidnapping mentioned at any period since he came to Maryland, or whether at any time since he had mentioned it? To which he answered, he did not recollect to have mentioned it, but had heard it talked of. The witness also proved, that one B. Sweat returned to Maryland with captain Sweat and himself, and that both captain Sweat and B. Sweat are dead. The petitioners then proved by J. Denny, that he had heretofore resided in the immediate neighborhood of W. Sweat, (who is now dead,) the brother of captain Sweat, and with whom negro Suck then lived; that he heard a conversation between Suck and the mother of the witness, in which Suck stated herself to have been free in Virginia, and to have been stolen from thence by captain Sweat. The witness was then asked by the counsel for the petitioners, if it was the reputation of the neighborhood that Suck was a free woman? To this question the defendant, by his counsel,  [**3]  objected. But the Court, [Earle, Ch. J. and Worrell, A. J.] overruled the objection, and permitted the witness to answer the question, and to testify as to the reputation of the neighborhood in relation to Suck's freedom. The defendant excepted.

2. The petitioners then proved by the above mentioned witnesses, the declarations of captain Sweat as to the freedom of Suck. The defendant then proved, that captain Sweat had sold Suck to J. Gibson, deceased; and then proposed to prove. by the declarations of Gibson, that Suck was a slave. But the petitioners, by their counsel, objected to the testimony; and the court would not permit it to be given. The defendant excepted; and the verdict and judgment being against him, he appealed to this court.  

DISPOSITION:
JUDGMENT REVERSED, AND PROCEDENDO AWARDED.  

HEADNOTES:

The reputation of the neighborhood, that the mother of a petitioner for freedom was a free woman, is not admissible in evidence.

The declarations of a person since dead, but then holding the mother of a petitioner for freedom in slavery that she was a slave, are not admissible in evidence.  

COUNSEL:
Chambers and Harrison, for the Appellant, cited 1 Phill. Evid. 174, 177, 178 Peake's Evid. 12; and The King vs. The Inhabitants of Erith, 8 East, 539.

Carmichael, for the Appellee, cited Peake's Evid. 10, 14.  

JUDGES:
The cause was argued before CHASE, Ch. J. and BUCHANAN, JOHNSON, MARTIN, and DORSEY, J.  

OPINION:

 [*244]  THE COURT dissented from the opinion of the county court in the first [**4]  bill of exceptions, but concurred in that in the second.
JUDGMENT REVERSED, AND PROCEDENDO AWARDED.  

36 of 38 DOCUMENTS 

HENDERSON VS. NEGRO TOM.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

4 H. & J. 282; 1817 Md. LEXIS 18 

June, 1817, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Harford County Court. A petition for freedom was filed by the appellee against the appellant. This cause, upon the assent of the parties, being brought before the court, for hearing and trial by the court, the petitioner proved that he was imported from the state of New-York into Harford county in this state, in the year 1792 or 1793. The defendant then proved to the court, that Abraham Cole, a citizen and resident of the state of New-York, removed from that state into Harford county, in the beginning of the year 1793, and brought with him from New-York into Harford county, sundry negro slaves, of which the petitioner Tom is one; that he continued to reside in Harford county from the time of his coming aforesaid, for about 15 years; that the defendant, then land ever since a resident of said county, having intermarried with the daughter of said Cole, received from him the petitioner as a part of the portion of his wife, and has so held him ever since; that the petitioner was born in the state of New-York, in the family of said Cole, to whom the petitioner and his mother belonged as slaves, and has lived with him in New-York from the time of his birth; that at the time [**2]  said Cole brought said negro into Harford county, there was no naval officer in said county, but a naval officer at the city of Baltimore; that one Thomas Taylor was collector of the tax at the time of the bringing said negro into said county; that in some short time after said negroes were so brought into said county, a conversation did take place about said petitioner, and the other negroes so brought into Harford county, the particulars or design of that conversation was not known to the witness; that in March 1793 the petitioner, and other negroes so brought into Harford county, were entered on the books of the county assessments of said county, as the slaves of said Cole, and taxed to him, and have been so taxed ever since. That the said Taylor has long since left Harford county, and whether he is still living or dead is uncertain, and if living his residence unknown; and it is unknown where are, or what has become of papers in his possession, if in being. The County Court gave judgment upon the preceding statement that the petitioner was entitled to his freedom, and that he be discharged from servitude, &c. From which judgment the defendant appealed to this court.  

DISPOSITION:
AFFIRMED.  [**3]  

HEADNOTES:

Where a slave had been imported into this state in 1792 by his owner, who had not complied with the provisions of he act of April 1783, ch. 23, by causing a registry, &c. to be made of such slave--Held, that the slave was entitled to freedom.  

COUNSEL:
Kell, for the Appellant, referred to the act of April 1783, ch. 23, s. 1, and Scott vs. Negro Ben, 6 Cranch 1.

Winder, for the Appellee.  

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

OPINION:

 [*283]  JUDGMENT AFFIRMED.  

37 of 38 DOCUMENTS 

JOHNSON VS. MEDTART.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

4 H. & J. 24; 1815 Md. LEXIS 8 

December, 1815, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Frederick County Court. In this case a writ de homine replegiando issued, (bond with security for that purpose having been first given,) to replevy the plaintiff, (now appellant,) out of the possession of the defendant, (the appellee.) The writ commanded the sheriff, "that justly and without delay you cause to be replevied J Johnson, whom J. Medtart hath taken, and doth keep taken, as it is said, unless he was taken by the command of any of the justices of the said state for death of man, or for any other right for which he may not be replevied according to the laws of this state, that we may hear no more clamor thereupon for want of justice. Hereof fail not," &c. The sheriff returned the writ, "Replevied, and the defendant summoned." The defendant appeared and moved the court ex officio to quash and abate the writ, for the following reasons: 1. Because it has been issued by the clerk of this court contrary to the practice of this court, and contrary to the laws of this state. 2. Because the writ upon the face of it is de facto a nullity and destroyed, having no practice of this court, or laws of this state, to support it, and ought to abate by the direction of the court [**2]  ex officio, without any plea thereto an the part of the defendant. 3. Because the writ is defective in form. 4. Because this court can take no cognizance of any such writ by any practice of this court, or any law of this state. The county court, for the reasons assigned, quashed the writ, and ordered that the plaintiff redeliver himself to the defendant. The plaintiff appealed to this court.  

DISPOSITION:
AFFIRMED.  

HEADNOTES:

A writ de homine replegiando cannot legally issue from any of the courts of law of this state.  

COUNSEL:
Ross, for the Appellant. The motion in the court below was to quash the writ de homine replegiando, on the ground that the county courts of this state have no jurisdiction to sustain such a writ; and the court determined that they had no jurisdiction to issue the writ, and ordered it to be quashed. The writ de homine replegiando lies to replevy a man out of prison, or out of the custody of any private person. 3 Blk. Com. 129. It is an original writ, and the party may sue it of right. It is properly returnable in the courts of law, and may be there declared upon. Treblecock's case, 1 Atk. 633. Being an original writ, and consequently issuing from the court of chancery, which in England is the officina justitia, furnishes no argument against the jurisdiction of the county courts [**3]  in this state, where their writs and process, like their laws, are formed on a plan which by experience have been found applicable to their local and other circumstances. Thus in England, the original writ is the king's warrant for the judges of the common pleas, &c. to proceed to the determination of the cause, and is the foundation of their jurisdiction; but the county courts of this state derive their authority from a different officina justitia, and their jurisdiction does not rest upon the mandatory writ of the chancellor. The writ of replevin at common law in England is an original writ, and issues from chancery, and it is the common law replevin that has been adopted in this state, for there can be no replevin in this state under the statute of Marlbridge. The county courts have been in the constant practice of issuing the common writ of replevin, without any special mandate from the court of chancery, and their jurisdiction has never been called in question; and if there is in England a difference between the writs de homine replegiando, and the common replevin at common law, in what consists their difference in this state that the county courts should have jurisdiction in [**4]  the one case and not in the other? Does the habeas corpus act create that discrimination, by rendering the writ de homine replegiando in a great measure obsolete? The common law, and its remedies, are not repealed by nonuser, nor does the giving a new writ take away the old remedy, unless it be so expressly provided. The writ de homine replegiando issued in many cases in England, after the passage of the habeas corpus act. Designy's case, Sir T. Raym. 474, decided in 1682. Moor vs. Watts, 2 Salk. 581, decided in the reign of William III. They have also issued in Baltimore and, Harford counties. By the third section of the bill of rights, the inhabitants of Maryland are entitled to the common law of England, and the trial by jury, according to the course of that law. By the twenty first section, no free man ought to be taken and imprisoned, &c. or deprived of his life, liberty or property, but by the judgment of his peers, or by the law of the land. The court will perceive by a perusal of the habeas corpus acts of this state, that many instances may occur, (and none more striking than the plaintiff's case, who was denied the right of controverting the return to the habeas corpus, which [**5]  he had obtained,) in which an inhabitant of this state may be deprived of his liberty contrary to the common law, and without the judgment of his peers, unless the county courts have jurisdiction to issue writs de homine replegiando. The habeas corpus act makes it the duty of the chancellor, judge or justice, either to discharge, admit to bail, or commit, &c. To admit to bail by the act supposes the party committed for some offence cognizable in the criminal court. The commitment is ordered where the party is charged with an offence not bailable; and the party is only restored to his liberty if it shall appear to the judge that he is detained without any legal warrant or authority. In the two first cases the inhabitant will be tried according to the course of the common law, and have the benefit of a trial by his peers; but if the party is in the custody of a recruiting officer, and detained upon a pretended or illegal enlistment, this offence, not being cognizable in the criminal court, no recognizance can be taken for his appearance in the county court the term following, to try him by his peers, but he is either discharged or committed, as the opinion of the judge may be on the [**6]  enlistment; and if committed--to whom? To the custody of him by whom he was detained--the recruiting officer? And is thus deprived of his liberty without the judgment of his peers passing upon him, and left to his remedy upon the false return to the habeas corpus, should it be false; for a return may be true, and the original caption totally illegal, in which case the suffering individual would be deprived of even this shadow of redress, by an action for the false return. The general form of a return to a habeas corpus is, "that the party has not the person in his custody, possession or power." The King vs. Winton, 5 T. R. 91. An officer may order his recruit to a distant post, under a superior officer, and distinct command, and upon a return to a habeas corpus, issued by the father for his son, or master for his apprentice, may with truth make the above return, though the taking of the son or apprentice, in the first instance, was the most flagrant invasion of personal liberty. The habeas corpus act, in such a case, would furnish no remedy, but the writ de homine replegiando would punish him for the illegal taking, though at its service upon him, the son, &c. was neither in his custody,  [**7]  possession or power. The writ de homine replegiando is a writ not unknown to the laws of this state, for it is specially recognized by the legislature in the act of 1810, ch. 63, s. 2; and surely it will be unnecessary to argue, that the county courts, having jurisdiction under this act to issue this writ upon the application of a negro for his freedom, have also the power to issue it upon the application of a free man to recover his liberty.

Pigman, for the Appellee. Upon the first and second reasons assigned in this case for quashing the writ de homine replegiando, if there was neither common law, nor statute law of this state, nor practice of the court, to authorise the use of it, it was the duty of the court ex officio to quash it, without requiring a plea in abatement. 1 Bac. Ab. tit. Abatement. The court will not call upon a defendant to plead in abatement or in bar, to any writ issued without lawful authority. In the language of the law, if the writ issues without lawful authority, it is de facto a nullity, and deserves no plea or replication of any sort. In England, this writ has long been disused, on account of the numerous exceptions which it contains, and of the superiority [**8]  of the writ of habeas corpus. The exceptions will be found in 1 Lill. Ent. 293, and in other books of entries, and if they should be omitted in the writ, it would doubtless be quashed; for they contribute to mark out the sheriff's duty, which is a qualified one. We have always taken for granted, that homine replegiando could not issue out of our county courts. In England it can only issue from the law side of the court of chancery, as officina justitia. It is an original writ--so is the alias and the pluries. 14 Vin. Ab. 305, (A) pl. 1. 4 Com. Dig. tit. Imprisonment, (L. 4.) 361. More vs. Watts, 1 Lill. Ent. 293. Reg. 77. Fitz. N. B. 66. The Withernam which issues upon the return of eloigned, or the pluries, is a judicial writ, and goes from the court to which the pluries is returned; and it is the first judicial process in such an action. In More vs. Watts, 1 Lill. Ent. 293, will be found the entire proceedings in a homine replegiando, in which the plaintiff was nonsuited. It begins with the pluries from chancery, gives the return of eloigned made by the sheriff to the court of King's Bench. The Withernam, founded upon that return, issued by the King's Bench, and the consequent proceedings [**9]  which terminated in a non pros. It is a great error to confound the homine replegiando with the common replevin, or replevin de averis. At common law the replevin de averis issued exclusively from chancery. 3 Blk. Com. 147. Weaver vs. Lawrence, 1 Dall. 156. The statute of Marlbridge authorised the proceedings by plaint, as it is found in all the books of entries; and it would seem that we have modelled our action of replevin for goods upon the proceedings by plaint. In Weaver vs. Lawrence, 1 Dall. 156, there is a great display of the law relative to the two modes of proceedings by writ and by plaint. From which it is clear, that the writ of replevin, even de averis, could only issue from chancery, it being an original writ, and not a judicial one. The statute of Marlbridge did not touch the homine replegiando, it applied wholly to replevin of goods--2 Institutes; and our practice cannot be said to have changed the common law in relation to the writ of homine replegiando, for we have no practice, (and never had,) upon the subject. There could be no inducement to recur to that antiquated and inadequate writ. The habeas corpus, and petition for freedom, rendered it unnecessary and idle.  [**10]  It stands now, therefore, as it always has stood, upon the common law, and by the common law it must issue from chancery. The writ in this case must therefore be quashed, even if it were admitted that such writ could (as it is believed it could not,) be maintained in this state, if issued agreeably to the common law. If it were of any importance, it would be easy to show, that the case of a person detained as a recruit, regularly enlisted, is within the exception of the writ ac homine replegiando; such a person is as much "non replegiabilis," as the person mentioned in 2 Saunders 60, (arrested on the King's writ.) The two cases are alike, and ought to receive the same judgment, and the sheriff may and ought to return the exceptions. The plaintiff was a soldier in the United States army. The mischief of interfering in time of war with the recruiting service, would even be greater than that of stopping the ordinary process of the law. The writ of habeas corpus can do little prejudice to the public, while it may be useful to the individual. It can never issue without cause shown on oath, and is soon disposed of. The writ of homine replegiando, is ex debite justitia, without cause shown,  [**11]  and if the sheriff does not do his duty with reference to the exceptions, (as he may either upon his own responsibility, or by taking the verdict of an inquest,) the recruiting service may be destroyed. No country could carry on war in which such an anomaly existed. Even if it had been lawful to issue the writ by the clerk of Frederick county court, from the very nature of the federal and state governments the soldiers of the army ought to have been inserted as one of the exceptions. To permit any of the courts of any of the states to issue any writ, where the proceedings would be tedious and long, to interfere with any part of the army, would produce a most dangerous conflict of powers between the states and the federal government, which would weaken measures for the general defence, and might produce intestine confusion and disorder, inimical to our social peace and happiness.  

OPINION:

 [*29]  JUDGMENT AFFIRMED.  

38 of 38 DOCUMENTS 

THE STATE, use of CHAMBERLAINE'S EY'rs. VS. WRIGHT.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND, EASTERN SHORE 

4 H. & J. 148; 1816 Md. LEXIS 3 

May, 1816, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Queen Anne's County Court. An action of debt was instituted on the 27th of September 1811, upon a writing obligatory, bearing date the 28th of September 1797, and executed to the state, by a certain Samuel T. Wright, Philemon C. Blake, and Thomas Wright, (the defendant and now appellee,) reciting, that "whereas Cornelia Southeren, (late Cornelia Sewell,) executrix of the last will and testament of Clement Sewell, late of Queen Anne's county, deceased, neglected to counter-secure Samuel T. Wright, one of her securities on her administration of the said estate, pursuant to an order of the orphans court of said county for that purpose; and whereas the said Samuel T. Wright is about to possess himself of the said estate by virtue of process to be obtained from the said court. Now the condition of the above obligation is such, that if the above bounden Samuel T. Wright, his heirs, &c. do and shall well and truly deliver and pay all the goods, and chattels, and credits, which shall come to his or their possession by virtue or under such process, or the value thereof, agreeably to the laws of the state of Maryland, to such person or persons as have right to demand the same, when [**2]  he or they shall be thereto legally required, then," &c. The defendant pleaded general performance. He also pleaded, (in two different ways,) the 21st section of the act of July session 1729, ch. 24, which enacts, "that all actions upon administration and testamentary bonds, shall be commenced within twelve years after the passing of the said bonds, and not after." And he also pleaded the sixth section of the act of April session 1715, ch. 23, entitled, "An act for limitation of certain actions, for avoiding suits at law." The plaintiff replied non performance to the first plea, and assigned the recovery of a judgment in the general court for the eastern shore at September term 1803, in the name of the state, at the instance and for the use of Thomas Chamberlaine's executors, against Cornelia Sewell executrix of Clement Sewell; that a writ of fieri facias issued on the said judgment, and was returned by the sheriff nulla bona. That on the 13th of August 1804, an action was instituted against Samuel T. Wright, one of the securities of Cornelia Sewell in the testamentary bond, executed on the estate of Clement Sewell, and at May term 1810 a judgment by confession was entered against [**3]  Samuel T. Wright in that action. That at the time of the rendition of the last mentioned judgment, S. T. Wright, in virtue of and under the process of the orphans court of Queen Anne's county, in pursuance of the order made by the orphans court, had possessed himself of the goods, chattels and credits, which were of Clement Sewell at the time of his death, to the value of the debt, &c. which S. T. Wright ought to have delivered and paid over unto the said state in satisfaction of the said debt, &c. Breach, that S. T. Wright hath not paid or delivered over to the state the said goods, &c. or the value thereof, in satisfaction of the debt, &c. There were special demurrers to the second and third pleas, and the causes assigned were, "that it does not appear by the plea that the said writing obligatory, upon which the action is instituted, is in any way included or contained within any of the provisions of the act of July 1729." To the fourth plea the plaintiff replied, that the writing obligatory, upon which the action is brought, was executed on the 28th of September 1797, by S. T. Wright, and one P. C. Blake, and the defendant; that before the debt, or any part thereof, which arose [**4]  by and upon the said writing obligatory, had been twelve years standing, and within twelve years after the cause of action in the declaration by and upon the writing aforesaid arose and accrued, to wit, on the 2d day of September 1794, an action of debt was instituted in the name of the state, at the instance and for the use of Thomas Chamberlaine's executors against Clement Sewell, one of the securities of Samuel Earle, on the testamentary bond executed on the 24th of March 1788, on the estate of Richard T. Earle, for the recovery of the amount of a judgment obtained in the general court at April term 1789, in the name of Samuel Chamberlaine, and Robert Lloyd Nicols and wife, surviving obligees of James Lloyd Chamberlaine, for the use of Thomas Chamberlaine, against Samuel Earle, executor of Richard T. Earle. That during the pendency of that action against Clement Sewell, he died, and Cornelia Sewell, his executrix, was summoned and made defendant, and a judgment rendered against her at September term 1803, upon which a fieri facias issued, and was returned nulla bona. That afterwards, on the 13th of August 1804, an action of debt was instituted in the name of the state, at the instance [**5]  aforesaid, against S. T. Wright, one of the securities of Cornelia Sewell, in the testamentary bond executed by her as executrix of Clement Sewell, and judgment thereon rendered in Queen Anne's county court at May term 1810. Verification, that the debt or thing in action was not above twelve years standing at the time of suing out of the original writ in this cause. The defendant in his rejoinder to the first replication, stated, that after S. T. Wright possessed himself of the goods, &c. which were of Clement Sewell, under and by virtue of the order and process of the orphans court, to wit, on the 31st of December 1799, the orphans court revoked the letters testamentary which had been granted to Cornelia Sewell, and committed to S. T. Wright, in due form of law, administration de bonis non, with the will annexed, of all and singular the goods, &c. of Clement Sewell, unadministered by Cornelia Sewell. That the goods, &c. of Clement Sewell, which S. T. Wright possessed himself of under and by virtue of the order and process aforesaid, were of the goods, &c. of Clement Sewell, which were unadministered by Cornelia Sewell, and as such were assets by S. T. Wright to be administered. He [**6]  joined in the demurrers to the second and third pleas. In his rejoinder to the fourth replication, he stated, that the state had a good cause of action on the said writing obligatory on the 29th day of September 1798, and might then have sued for the said debt, &c. and that the debt or thing in action in the said writing obligatory, and the condition thereof mentioned, had been twelve years standing before the issuing of the original writ in this cause. The plaintiff, in the surrejoinder to the first rejoinder stated, that under the order of the orphans court goods, &c. unadministered by Cornelia Sewell to a very large amount, to wit, &c. were delivered over and came to the hands and possession of S. T. Wright; and although the letters testamentary of Cornelia Sewell were afterwards revoked, and letters of administration de bonis non, with the will annexed, were committed to S. T. Wright, there only remained in the hands and possession of S. T. Wright, at the time of granting the letters of administration, goods, &c. to a small amount, to wit. &c. and the rest of the goods, &c. to a large amount, and more than sufficient to pay the debt, &c. had been wasted, disposed of, and misapplied.  [**7]  The surrejoinder to the fourth replication stated, that the debt or thing in action in the said writing, &c. and for the recovery of which this action is prosecuted, had not been twelve years standing before the issuing of the original writ in this cause. Issue joined. The defendant in his rebutter to the first surrejoinder pleaded, that under and by virtue of the order and process of the orphans court, the goods, &c. to the amount of, &c. were not delivered over, and did not come into the hands and possession of S. T. Wright; but that so much thereof as S. T. Wright did receive under and by virtue of the order and process aforesaid, remained in his hands and possession at the time of revoking the letters testamentary of Cornelia Sewell, and granting the letters of administration, &c. which were insufficient to pay the debt, &c. and were not wasted, disposed of and misapplied, &c. Issue joined. The county court ruled good the demurrers to the second and third pleas.

1. The plaintiff at the trial, to support the first issue joined, read in evidence a copy of the order and decree of the orphans court of Queen Anne's county, made on the 8th of August 1797, directing "that John Southeren,  [**8]  and Cornelia his wife, who is the executrix of the last will and testament of Clement Sewell, late of Queen Anne's county, deceased, deliver into the hands of Samuel T. Wright, one of her securities, for the due administration of the estate of the said Clement Sewell, all such part of the said estate which shall be remaining in her hands." And, for the purpose of proving that S. T. Wright received a large sum of money of the estate of Clement Sewell from one John S. Blake, the plaintiff read in evidence a record of a judgment, fieri facias, and return made by the sheriff, obtained, sued out and returned, in the name of Cornelia Sewell, executrix of Clement, for the use of S. T. Wright, against the said Blake; by which record it appeared that judgment was obtained in the said action in the general court at April term 1796, fieri facias's issued, and to October 1798 one was returned, laid on certain lands, which were unsold for want of buyers; a venditioni exponas issued to April term 1799, and returned by the sheriff, sold, and the money ready, &c. but which was ordered to be quashed, and a new fieri facias afterwards issued to September term 1799, and was returned by the sheriff "satisfied [**9]  plaintiff, says Sheriff." The plaintiff also offered evidence by the Hon. Richard T. Earle, that he was counsel for Cornelia Sewell, and prosecuted the above suit to final judgment, and that he was also counsel for John Southeren, and Cornelia his wife, after their marriage; that after S. T. Wright obtained the aforesaid order, he took upon himself the collection of the money due on the said judgment; that a fieri facias was laid on the lands of John S. Blake, returnable to April term 1799, which was quashed for irregularity; that another fieri facias was laid on Blake's lands, returnable to September term 1799. That the sheriff was about selling the lands, and met at Centreville for the purpose, when a stop was put to the proceedings in consequence, as he understood, of an arrangement made to pay the money in Baltimore. He does not positively know that the money was paid to Samuel T. Wright on the judgment aforesaid; but that after Samuel T. Wright obtained the order from the orphans court, the witness became counsel for John S. Blake, and was concerned in setting aside the first execution; that he remained counsel for Blake till the time of his death, which happened in the year 1803;  [**10]  and that he never heard of any claim being made on Blake by S. T. Wright, or any other person, on account of the said judgment. That Blake was, before the year 1799, a man of large fortune, and remained so till the time of his death. The defendant then offered evidence, that by the order of the orphans court the letters testamentary of Cornelia Sewell were revoked on the 14th of August 1799, and that letters of administration de bonis non, with the will annexed, was granted to S. T. Wright on the 31st of December 1799. The defendant then prayed the court to instruct the jury, that if they believed that S. T. Wright, the principal in the bond on which this suit was brought, was, on the 31st of December 1799, appointed administrator de bonis non, with a copy of the will annexed, of Clement Sewell, that then they cannot from the evidence offered in this cause, find for the plaintiff on the first issue joined; but must find for the defendant on the said issue. This instruction the Court, [Purnell and Worrell A. J.] gave. The plaintiff excepted.

2. The plaintiff, to support the aforesaid first issue joined, and to prove that Cornelia Sewell was ordered by the orphans court of Queen [**11]  Anne's county to counter-secure S. T. Wright, who was one of the securities of Cornelia on the testamentary bond given by her as executrix of Clement Sewell; and that in consequence of her not giving him such counter-security, the said court ordered and decreed, that she should deliver over to S. T. Wright all the goods, &c. of the said Clement, by her unadministered, read in evidence the said order and decree of the orphans court. And the plaintiff then further offered evidence to prove, that afterwards S. T. Wright, by virtue of the said order of the orphans court, did receive the sum of £  1733 current money of the goods, &c. which were of the said Clement, &c and that he did not, on his being appointed administrator de bonis non, &c. or at any time after, return to the orphans court any inventory charging himself as administrator, &c. with the said sum of money, or any part thereof. And also offered in evidence the letters of administration, &c. to S. T. Wright, dated the 31st of December 1799. The plaintiff then prayed the court to direct the jury, that if from the evidence so offered they found that S. T. Wright did, under and by virtue of the said order of the orphans court,  [**12]  receive the said sum of money of the goods, &c. which were of the said Clement, &c. and had before he was appointed administrator, &c. wasted the same, and was not possessed thereof at the time of his being so appointed, that then the plaintiff is entitled to a verdict upon the said first issue. But the court refused to give this direction, being of opinion, that if S. T. Wright had received the property of the said Clement, under the said order and decree of the orphans court, and had wasted the same before he was appointed administrator, &c. yet in consequence of his being so appointed, and receiving letters de bonis non, &c. the plaintiff could not support the first issue joined in this cause. The plaintiff excepted.

3. The plaintiff then, to support the second issue joined, read in evidence a record of a judgment obtained in the general court at September term 1803, in the name of the state, at the instance and for the use of Thomas Chamberlaine's executors, against Cornelia Sewell, executrix of Clement; and also a record of a judgment obtained in Queen-Anne's county court at May term 1810, in the name of the state, at the instance and for the use of T. Chamberlaine's executors,  [**13]  against Samuel T. Wright; which said judgments are set forth in the pleadings herein before stated. The defendant then prayed the court to instruct the jury, that the evidence in this cause is not sufficient to support the second issue in fact joined; and the court gave the instruction. The plaintiff excepted; and the verdict and judgment being for the defendant, the plaintiff appealed to this court.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

By an order of the orphans court in August 1797 the executrix of C S was directed to deliver to S W, one of her sureties in the testamentary bond, all such part of the estate of the testator as remained in her hands. S W entered into bond to the state, dated in September 1797, reciting the order, and conditioned that he should deliver and pay all the goods, &c. which should come to his possession by virtue or under the order, or the value thereof, agreeably to law, "to such person or persons as have right to demand the same, when he shall be thereto legally required," &c. An action of debt was brought on this bond in September 1811, at the instance of one of the creditors of the deceased testator, against one of the sureties therein, who pleaded general performance, and the acts of limitations of 1729, ch. 24, and 1715, ch. 23--Held, that a creditor was not entitled to have the bond sued; as S W could not pay the debts of the deceased, nor recover debts, nor pay legacies, nor settle an account in the orphans court. That he may be likened to one who has letters ad colligendum. That he was liable to the administrator de bonis non, (the executrix being dead) if one was appointed; and if none appointed, to nobody.

Held also, that the bond above mentioned executed by S W, on which the action was brought, was the thing in action, and not the judgment mentioned in the replication obtained by the creditor against the executrix of C S in 1803; and that the act of limitations was a bar to the action.  

COUNSEL:
Martin and Carmichael, for the Appellant, on the first bill of exceptions, contended, that Wright was liable under his bond of September 1797, for all monies received under the order of the orphans court. They further contended, that even admitting that after the letters of administration de bonis non were granted to Wright, he was to be considered as then in possession of the property as administrator, and not by virtue of his bond of 1797, yet as the defendant had taken issue on the fact whether between the date of the bond in 1797, and his letters of administration de bonis non, he had wasted the property received by him under his said bond, the question of the liability under that bond, after the issuing of those letters, could not properly arise. That question [**14]  could only have arisen by the defendant's demurring to the allegation of a devastavit by Wright, before the date of his letters. They referred to the acts of 1729, ch. 24, s. 23, and 1734, ch. 17, and Quimby vs. Wroth, 3 Harr. & Johns. 249.

On the third bill of exceptions. The defendant relied on the fact, that the debt, if it existed, did not exist more than twelve years, and the issue was joined on this fact. It is objected--1. That the act of 1715, ch. 23, does not extend to such bonds; and 2. Twelve years had not elapsed before the institution of the suit. 1. No bond taken in the name of the state was barred by the act of 1715, ch. 23, s. 6. The word or cannot be construed and. If so construed, then bonds in the name of the king would be barred, unless they were also for the use of the king. All bonds in the name of an individual would be excluded, although for the use of the king. Bonds in the name of the king are not barred because the public are interested. Testamentary bonds were given to the commissary general in 1715. This bond is taken in the name of the state, and the state is barred by no time, except where provision is specially made by statute. 2. Was the debt or [**15]  thing in action above twelve years standing? There was no debt due from Sewell's estate until the judgment against his executrix in 1803, and of course there was no cause of action in this case upon which limitations could attach. A cause of action existed before the judgment, but the debt was not due. No judgment could have been obtained unless the debt was due when the suit was brought. The liability was on the misapplication of the assets by Earle. When Wright's bond was given in 1797, a suit was then depending against Sewell's executrix, and that bond could not be sued without nonsuiting the action against her. They referred, on these two points. to Esp. Dig. 151, 226. Johnson vs. Smith, 2 Burr. 950. Trueman vs. Fenton, Cowp. 548. Stat. 32 Hen. VIII, ch. 2, s. 4. Foster's case, 8 Coke, 65.

Bullitt, Chambers, and Harrison, for the Appellee. On the first bill of exceptions. There is no evidence to charge Wright with Blake's judgment. It has been contended that no issue ought to have been joined on the allegation of devastavit, that the defendant ought to have demurred. As the plaintiff made the allegation, the defendant had a right to join issue on it. He might have demurred,  [**16]  but he was not compelled. The case of Quimby vs. Wroth was, whether the possession was adverse or not, and the court received the declarations of the party to show it was not adverse. There is no bond required by the act of 1729, ch. 24; but the act of 1734, ch. 17, demands the bond, and prescribes the condition, in which the obligor is only bound to deliver goods and chattels, not rights and credits, as stipulated in the bond given in this case. If then Wright did receive the amount of Blake's judgment, yet the condition of the bond cannot legally embrace it. Where the statute prescribes the form of a bond it must be pursued. 6 Bac Ab tit. Statute, (H) 379, cites Slawney's case, Hob. 83. The Proprietary vs. Jordan, 3 Harr. & M'Hen. 179. Downes vs. The State, use of Tilden, 3 Harr. & Johns. 239. When Wright was appointed administrator de bonis non, he was the person to receive the whole funds, and as administrator he was to hold the property he received under the order of 1797, and therefore the bond he gave under that order could not be sued; and if between that order and the granting letters of administration to him, he wasted the property, yet his sureties under that order are discharged.  [**17]  3 Bac. Ab. tit. Executors, &c. (H) 58. There is nothing to show that Wright had not the money he received from Blake, when the letters of administration were obtained by him.

On the second bill of exceptions. Under the act of 1729, there is no authority given to the creditor to support an action against the property delivered--the security was to hold it; and when the letters were revoked, and letters de bonis non were granted, the administrator was to receive the property. He could only sue the bond given under the order in 1797. The act of 1734 only required other security. Under the order for the delivery of the property, the property so delivered was to be valued. There was no list of debts directed to be made. Rights and credits were not embraced. Where a bond is given by two obligors, and the obligee dies, having appointed one of them his executor, both are discharged at law. Cheetham vs. Ward, 1 Bos. & Pull. 630. Where a personal action is once suspended it is gone for ever. Carey vs. Goodinge, 3 Brown's Chan. Rep. 110. Berry vs. Usher, 11 Ves. 87. Where a man is to be the party suing and the party sued, the law will intend that to be done which the party defendant might [**18]  have been compelled to do. Wright was bound to pay and account for all he received under the order of 1797, whether wasted or not, before letters de bonis non were granted to him. If then Wright wasted the property, he was a debtor to the amount, and when he was appointed administrator de bonis non, that amount became assets in his hands, and discharged the bond of 1797. The sureties of an executor are discharged on the executor being appointed guardian. He is liable for the amount as guardian. The Proprietary vs. Jordan, 3 Harr. & M'Hen. 179.

On the third bill of exceptions. When did the cause of action accrue? Is the bond the "thing in action," or the judgment which it is sued to recover? Sewell was liable in 1784, as the surety of Earle; and although an action was brought against the executrix of Sewell, yet it need not to have been brought. The plaintiff might have brought the suit on Wright's bond. If Sewell's executrix had paid the judgment before a judgment was obtained against her, it would have been allowed to her in the settlement of the estate, because her testator was bound to pay. There was an apparent insolvency of the estate of Sewell, and therefore no judgment [**19]  was necessary against the executrix. Her testamentary bond might have been sued under the act of 1720, ch. 24, s. 2. The act of 1715, ch. 23, extends to all bonds in language in which the state is interested. The word or shall be read and. Fowler vs. Padgett, 7 T. R. 509; yet doubts arise whether that act takes in administration and testamentary bonds--the act of 1729, ch 42, includes them. If the bond in question is not an administration bond, then the act of 1715, being general, embraces it. When the property of Sewell was delivered to Wright, if on the bond he then gave, he was liable to creditors, and his bond was liable, the plaintiff could have supported a suit; but if he was only liable as administrator de bonis non, then the suit could not be maintained.  

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

OPINIONBY:
NICHOLSON 

OPINION:

 [*156]  NICHOLSON, J. delivered the opinion of the court. There are in reality but two questions in this case; the one whether the bond given by S. T. Wright, under the order of the orphans court, for possessing himself of Sewell's property, could be sued by a creditor of Clement Sewell; and the other on the [**20]  act of limitations.
The condition of the bond is, that the obligor shall deliver to the party entitled the whole property which he shall possess himself of A creditor is not such a party; for the obligor in the bond cannot pay the debts of the deceased, nor can he recover debts or pay legacies, or settle an account in the orphans court. If not authorized to pay debts, of course he cannot be sued for not paying them. He may be likened to one who has letters ad colligendum. The obligor in the bond is liable to the administrator de bonis non, if one is appointed; and if none appointed, he is liable to nobody. But it is clear that the commissary general heretofore, and the orphans court now, who have the care of the deceased person's estate, would take the necessary steps for the settlement of the estate by revoking the original letters, granting letters de bonis non. No inconvenience, therefore, can ensue from holding the obligor in the bond responsible only to the administrator de bonis non.
On the pleas of limitations, the bond executed by S. T. Wright, Thomas Wright and P. C. Blake, on which this suit is brought, is the thing in action, and not the [**21]  judgment against Sewell's executrix.
JUDGMENT AFFIRMED.