1 of 22 DOCUMENTS 

BARNEY VS. PRENTISS & CARTER.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

4 H. & J. 317; 1818 Md. LEXIS 7 

June, 1818, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court. Assumpsit against the defendant, (now appellant,) and others, as common carriers, for negligence, &c. The other defendants were not arrested. Plea, non assumpsit. The facts agreed upon were these: This suit was brought against the defendant, J. H. Barney, and others, to recover the sum of $ 627, with interest from the 9th of January 1813, they being on and before the 8th of January 1813, the owners and proprietors of a line of stage coaches running between Baltimore and Philadelphia, for the transportation of passengers, and goods and merchandize for hire. The plaintiffs, (the appellees,) by their clerk James C. Morsell, did on the 8th of January 1813, deliver a case of Senshaws at the mail stage office in Baltimore, kept by the defendants, to be transported to Philadelphia by the defendants, by means of the said stage coach line; that the case of Senshaws was of the value of $ 627. At the time of delivering the case at the office, the same was entered on the way bill for transportation by the clerk then in the stage office, who entered the case for delivery at Philadelphia to Weems & Benson, and for the transportation and delivery of which, the [**2]  defendants were to receive a reasonable hire or compensation, the amount of which was entered on the way bill. Shortly after sending the case of Senshaws, the plaintiffs received a letter from Weems & Benson, informing them that the case had not come to hand, and at the same time acknowledging the receipt of a letter and invoice, sent by the plaintiffs by the same mail which should have carried the Senshaws. The case was never transported and delivered at Philadelphia by the defendants, nor was the same ever heard of, or accounted for, by the defendants, since the delivery thereof into their possession at the stage office in Baltimore. That the following advertisement, to wit: "New Line Expedition--Summer Establishment, through in one day. The new line Expedition will commence her summer establishment on Sunday the 15th inst. (March,) by starting from the Fountain Inn, Light-street, at 3 o'clock A. M. breakfast at Havre de Grace, dine at Wilmington, and arrive at an early hour in the evening at Philadelphia. Fare and allowance of baggage as usual. All baggage to be at the risk of the owners thereof. United States mail stages start as usual from the Fountain Inn. The Eastern mail at [**3]  3 o'clock P. M. and the Southern mail at 6 o'clock A M. All the baggage over 20 Ib. will hereafter positively be charged, and be at the risk of the owners thereof. John H. Barney," &c. was published in the different newspapers in the city of Baltimore, and was in the knowledge of the plaintiffs previous to the 8th of September 1813. No money or hire was paid at the time of delivering the case of Senshaws; but the hire or reward was entered on the way bill at the time the said goods were entered for transportation. The county court gave judgment upon these facts for the plaintiffs; and the defendant appealed to this court.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

An action against common carriers, being the proprietors of a line of stage coaches running between B and P, for the transportation of passengers and goods and merchandize for hire, for negligence in not delivering a case of Senshaws, delivered by the plaintiff at the stage-office, and entered on the waybill for transportation, and for which he was to pay a reasonable compensation The defendants had published in the various newspapers in B, (and which was known to the plaintiffs,) the time when the stages would start from and arrive at the respective cities, and the publication contained also these clauses: "Fare and allowance of baggage as usual. All baggage to be at the risk of the owners thereof" "All the baggage over 20 lbs. will hereafter positively be charged, and be at the risk of the owners thereof"--Held, that if the owners of stage coaches, which carry not only passengers and their baggage, but goods, which the owner does not accompany. can by their publications exempt themselves from their liability, which the court did not mean to decide, then such publications should in that respect be plain and explicit. That in this particular case the defendants advertisement was in doubtful and ambiguous language, and that they were as responsible for the loss of the goods, as it no advertisement had been published by them.  

COUNSEL:
Winder and Murray, for the Appellant, cited Jones on Bailment, 102, 106. Laws of Carriers, 11, 25. Titchburne vs. White, 1 Stra. 145; and Clark vs. Gray, 4 Esp. Rep. 177.

No Counsel appeared for the Appellees.  

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

OPINIONBY:
JOHNSON 

OPINION:

 [*318]  JOHNSON, J. delivered the opinion of the court. This is an action on the case brought by Prentiss and Carter against Barney, to recover the value of a parcel of goods placed by them in the possession [**4]  of the defendant, to be carried for hire from Baltimore to Philadelphia.
The cause was determined on a case stated in favour of the plaintiffs, from which determination the defendant appealed.
The case stated sets forth, that the plaintiffs, the proprietors of a case of Senshaws of the value of $ 627, delivered them at the stage office, and had them entered on the way bill for transportation, and for which they were to pay a reasonable compensation; that a letter from the plaintiffs to their correspondent in Philadelphia, was at the same time put into the post office, which was in due time received; but the goods, from the case stated, do not appear to have been received at Philadelphia, nor any account given of them. It also appears that the defendant was, at the time the goods were delivered, the owner and proprietor of a line of stage-coaches running from Baltimore to Philadelphia, for the transportation of passengers, and goods and merchandize for hire; that previous to the goods in question having been delivered for transportation, the defendant published in the various newspapers in Baltimore the time when the stages would start from, and arrive [**5]  at, the respective cities, in which publication are the following clauses, viz. "Fare and allowance of baggage as usual. All baggage to be at the risk of the owners thereof. All the baggage over 20 lb. will hereafter positively be charged, and be at the risk of the owners thereof." Which advertisement, before the delivery of the case of Senshaws, was known to the plaintiffs.
The question for the consideration of this court is, whether the county court erred in their judgment?
Whether the owners of stage coaches, which are principally engaged in carrying of persons, and such baggage as usually accompany them, but who also (as in the case before the court,) carry goods and merchandize for hire, without the owner accompanying them, can, by such advertisements, exonerate themselves from all responsibility for goods and merchandize delivered for transportation, need 

 [*319]  not, in this case, be determined. For, as such carriers would without such publications be responsible for the loss of goods delivered to be carried, if they can, by their publications, exempt themselves from their liability, then the publications, in the language of the exception, should be plain, explicit,  [**6]  and free from all ambiguity. But, as in the case before the court, the defendant, in the advertisement published by him, has used the most doubtful and ambiguous language, he therefore stands in the same predicament as if no publication had been made.
JUDGMENT AFFIRMED.  

2 of 22 DOCUMENTS 

WHITE VS. WAGNER.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

4 H. & J. 373; 1818 Md. LEXIS 19 

June, 1818, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court. This was an action of trespass on the case, in the nature of waste, brought by the plaintiff, (now appellant,) for waste and destruction done to her house in the city of Baltimore, during the time that the defendant, (the appellee,) was lessee to the plaintiff of the premises. The declaration contained two counts. The first alleged that the plaintiff was seized in her demesne as of fee, of the premises in question; that the defendant was her lessee from year to year, for the residue of a term commencing on, &c. and that the defendant during his term, &c. contriving, &c. to injure the plaintiff, &c. wrongfully. &c. committed the waste and injury complained of. The second count alleged that the plaintiff was possessed of the premises, without stating the quantity of her estate, that for a certain rent she demised them to the defendant for a year, and so from year to year; that the defendant agreed to pay the rent, to use the premises in a husband-like manner, and to deliver them up at the end of his term in as good tenantable repair, as they were when he took possession of them; that he did take possession under the demise, but disregarding his said [**2]  promises and agreements, he on, &c. collected a large number of persons into the house; and that he, and the persons so collected, committed the waste and destruction complained of. The general issue was pleaded.

1. At the trial it was admitted that the defendant was tenant of the premises in question, as a dwelling-house, under the plaintiff, for a year, at the rent of $ 350, and that no covenants or agreement were entered into by the parties relative to repairs of the premises, or other matters relating thereto, other than such as are implied by law, except merely the agreement to let the premises by the plaintiff to the defendant for a year, and by the defendant to pay the said rent. That the defendant entered into possession sometime in the month of May 1812, and continued therein until the 27th of June of the same year, when a large armed multitude of unknown persons, being residents of the city of Baltimore, or of this state, assembled and combined themselves together in the said city for the purpose of pulling down the said house, and compelling the defendant to desist from the distribution of a newspaper called The Federal Republican, and to drive the defendant from the [**3]  said city. That the mayor of the city, the judges of the court of oyer and terminer and gaol delivery for Baltimore county, and other civil officers of the said city and county, being informed of this combination and assemblage of an armed multitude, and the purposes for which they were so assembled, did, by all such ways and means as they deemed best calculated, from the powers they possessed, endeavour to prevent and hinder the said multitude from perpetrating their unlawful and outrageous purposes as aforesaid; but in spite of all the efforts of the said civil officers, and by a power wholly incontrollable and irresistible by the said officers, or by the defendant, the said armed multitude did compel the defendant, and his family, for the safety of their lives, to fly from and abandon said house and premises, and from the said city, and did ruin, spoil, and destroy said house, in the manner as stated in the declaration. The plaintiff then offered evidence to prove, that after the defendant took possession of the said house, he used it for the purpose of receiving therein a news-paper called The Federal Republican, which was printed in George Town, in the District of Columbia, of [**4]  which the defendant was an editor and proprietor, and from thence to distribute the same to the subscribers to the said paper, who resided in the city of Baltimore; and having reason to believe that the said house would be attacked by a lawless armed and unknown multitude, if the said paper was received and distributed therefrom, he collected, in a peaceable and lawful manner, a number of armed men for the purpose of defending the said house against any attack which might be made thereon by the said unknown multitude as aforesaid; and that it was after the introduction of the said armed men to defend the house, and the commencement of the distribution aforesaid therefrom, that the said armed multitude, as herein before stated, attacked, ruined and spoiled the house. To the admission of which said evidence, under the present declaration, the defendant objected. But the Court, [Bland and Hanson, A. J.] overruled the objection, and permitted the whole of said testimony to be given to the jury. The defendant excepted.

2. The defendant then moved the court to direct the jury, that if they believed the facts so admitted and given in evidence, that then the plaintiff was not entitled [**5]  to recover. Which opinion and direction the Court, [Dorsey, Ch J.] gave to the jury. The plaintiff excepted; and the verdict and judgment being against her, she appealed to this court.  

DISPOSITION:
JUDGMENT REVERSED, AND PROCEDENDO AWARDED.  

HEADNOTES:

A lessee for life or years, without special covenants, is responsible to his lessor for all injuries amounting to waste, done to the premises during his term, by whomsoever those injuries may have been done, with the exceptions of the acts of God, public enemies of the country, and the acts of the lessor himself.

An action on the case in the nature of waste, will lie for waste committed by a tenant for years. And it seems it will lie for permissive waste: and that it is not necessary to declare as for permissive waste

The distinction taken between voluntary and permissive waste. 

COUNSEL:
Raymond, for the Appellant. This is an action of trespass on the case, in the nature of waste. It is brought to recover damages for the waste and destruction done to the plaintiff's house in Charles-street, in the city of Baltimore, by a mob in 1812, the defendant being the plaintiff's lessee of the premises at the time. The declaration contains two counts. The first merely stating the plaintiff's interest in the premises, the relation between the parties as landlord and tenant, and the injury done to the premises. The second count sets out more particularly the implied contracts which the law raises on the part of lessees, and then charges the injury to have been wilfully done by the defendant, in violation of his implied engagements. Both counts are in substance and in law the same; both charge the defendant with voluntary waste--the second setting out the implied contract by way of inducement. Evidence which would support one count, would be equally [**6]  applicable to the other. Two questions naturally present themselves in the discussion of this case. The first question goes to the right of action. The second to the form of action.

1. As to the first question, it may be laid down as a principle of law, that a lessee for life or years, without special covenants, is responsible to his lessor for all injuries amounting to waste, done to the premises during his term, by whomsoever those injuries may have been done, with the exceptions of the acts of God, public enemies of the country, and the acts of the lessor himself. At common law those tenants only were punishable for waste, who claimed by operation of law, as guardians, tenants by the curtesy, and tenants in dower. A lessor had no remedy against his lessee for waste unless he had bound him by covenant not to do waste; because, as Lord Coke says, he that might and would not provide for himself, the common law would not provide for. 2 Inst. 145. This, however, was soon found to be a very hard and unreasonable doctrine, and the statute of Marlbridge was passed. 52 Hen. III, which provided "that farmers should not make waste, unless they had a special license, by writing of covenant,  [**7]  making mention that they may do waste." Lord Coke, in his commentary on the words "non faciant" in this statute, says "this statute prohibiteth that farmers shall not do waste, and yet if they suffer a stranger to do waste, they shall be charged with it, for it is presumed in law, that the farmer may withstand it, et qui non obstat quod obstare potest, facere videtur. The lessor shall have his action of waste against the lessee, and the lessee his action of trespass against him that did the waste; and if the lessor should not have his action of waste, he would be without remedy." This last observation must be confined to the action of waste, and then it is literally true, for waste will only lie against a tenant, although case will lie against a stranger who should do waste. 2 Inst. 146. Jefferson vs. Jefferson, 3 Lev 131. Panton vs. Isham, Ibid 358. Biddlesford vs. Onslow, Ibid 209. The statute of Gloucester, 6 Edw. I, was subsequently passed on the same subject, which provides that the which shall be attainted of waste shall lose the thing which he hath wasted, and shall moreover recompense thrice so much as the waste shall be taxed at." Lord Coke's commentary on this statute is [**8]  similar to his commentary on the statute of Marlbridge. He says "the tenant shall by construction of law answer for the waste done by any stranger." He says also, that a feme covert, and an infant, shall answer for the waste done by a stranger. 2 Inst. 303. 1 Inst. 53, 54. 7 Bac. Ab. tit. Waste, (H 1.) 269, 270. An infant and a feme covert are destitute both of the moral and physical ability to prevent a stranger from doing waste. It is, therefore, no defence for a tenant to allege his own inability to have prevented the waste from being done. It was as much in the power of the defendant to have prevented the mob from doing the waste in this case, as it could be for an infant a day old to prevent a stranger from doing waste. A guardian is excepted out of the operation of the statute of Gloucester, for waste done by a stranger. The reason given by Lord Coke for this exception is, "that it is so penal unto him." Like other tenants he was not only to lose the place wasted and treble damages, but if convicted of waste he was, by the common law, to lose his wardship, a thing often of great value in those times. Co. Litt. 54. It appears also from a decision in 9 Edw. II, that if thieves [**9]  burn the house of a tenant for life without evil keeping of the fire of lessee for life, the lessee shall not be punished therefor in an action of waste. It is impossible to devise upon what principle this case was decided, as the Year Book in which it is reported cannot be obtained. It is, however, of little consequence, as it is but an exception to the general rule, and does not embrace the case before the court, and exceptio probat regulam. Brooke in his Abridgment, tit Waste, pl. 15, says, that if waste is done by the King's enemies, the tenant is not answerable, but it is otherwise if done by traiterous subjects of the king. Year Book, 33 Hen. VI. The tenant is excused for the acts of God and public enemies, because he has no remedy over. 2 Inst. 145, 303. Co. Litt. 54. The tenant must either be liable for the acts of all strangers, (with the foregoing exceptions,) or for none. His liability cannot depend on the number of strangers concerned in doing the waste, or upon the degree of force used. If done without the tenant's knowledge or against his will, it can make no difference in principle whether the waste was done by one man or by five hundred. If the defendant is not liable [**10]  for waste done by a stranger, he can plead it in bar. Will it be pretended that it is a good plea in bar for the defendant to say, the waste was done by a stranger? Bull. N. P. 119. Vin. Ab. tit. Waste, (K.) This law is founded on the soundest reason; for deplorable indeed would be the condition of lessors if such were not the law. This liability of lessees is the only security lessors have against their collusion with strangers to do waste. The lessor, who is usually at a distance from the premises, often would not known who had committed the waste, and often would not even know, until long afterwards, that waste had been committed. If the tenant is not liable for the acts of strangers, he will have small inducement to be vigilant in preserving the premises committed to his charge. He will have still less inducement to incur the trouble and expense of a law suit to recover damages for waste after it has been committed; so that in point of fact the landlord would, in most cases, be remediless, and the wrongdoer go unpunished. So rigidly was the principle of law, upon which the plaintiff founds her claim, enforced under the statutes of Marlbridge and Gloucester, that tenants were made [**11]  responsible for destruction done to the premises by fire communicated by accident or mischance; and so the law continued to be until the 6 Anne, ch. 31, which exempted tenants from liability for waste, occasioned by fire, without his default. Pantam vs. Isham, 1 Salk. 19. S. C. Holt, 9. Countess of Salop vs. Crompton, Cro. Eliz. 777. Countess of Shrewsbury's Case, 5 Coke, 14. Attersoll vs. Stevens, 1 Taunt. 183.

But were it admitted that a tenant for life or years is not responsible to the lessor for waste done to the premises, during his term, by a stranger, without default of the tenant, still the defendant in this case would be liable for the waste complained of. The defendant has been guilty of such a default--of such a misuser of the premises, as will make him answerable for the injury done to the house by the mob. The defendant rented the house as a dwelling-house for his family. The parties, at the time the contract was made, did not contemplate its being appropriated to any other purpose. The defendant afterwards used the house for the purpose of receiving therein The Federal Republican news-paper, and distributing the same to the subscribers. He knew at the time it was [**12]  a very obnoxious paper, and it is proved that he had reason to believe the house would be attacked by a lawless multitude, if the paper was received and distributed therefrom; and that in consequence of these apprehensions, he collected a number of armed men in the house for the purpose of defending it. This was surely such a misuser of the premises as would make him responsible for all consequences upon the ground of his own default. Had the plaintiff supposed the house was to have been appropriated to that use, she would not have let it to the defendant, or if she had, she would have demanded an increased rent in proportion to the risk. A tenant has surely no right to convert a house, rented as a dwelling, into a garrison, at the risk of his landlord.

Upon either of the foregoing grounds, therefore, the plaintiff has an undoubted right of action against the defendant.

2. As to the form of the action. The action of trespass on the case, in the nature of waste, has almost entirely superseded the old action of waste, which Serjeant Williams, in his notes to Saunders, says is now very seldom brought. Case is a far more convenient action to the plaintiff than waste. It is also [**13]  more beneficial to the defendant, as it relieves him from the penal consequences of waste under the statute of Gloucester, the plaintiff recovering no more than the actual damage the premises have sustained Greene vs. Cole, 3 Saund. 252, (note 7.) Jefferson vs. Jefferson, 3 Lev. 131. Pantam vs. Isham, Ibid 358. West vs. Treude, Cro. Cur. 187. Countess of Salop vs. Crompton, Cro. Eliz. 777, 784. Countess of Shrewsbury's case, 5 Coke, 14. It is decided in Kinglyside vs. Thornton, 2 W. Blk. Rep. 1111, that case in the nature of waste will lie, although the tenant has specially covenanted not to do waste. But it has been said, and will probably be said again, that this is permissive waste, and that case will not lie for permissive waste, upon the authority of Gibson vs. Wells, 4 Bos. & Pull. 290, and Herne vs. Bembow, 4 Taunt. 764. But this is voluntary and not permissive waste. Whether waste be voluntary or permissive, is to be ascertained by reference to the nature of the injury, and not to the intention of the tenant. If waste be produced by human volition, it is surely voluntary waste, whether the will of the tenant concurred in it or not. It will not be pretended that the waste complained [**14]  of was not caused by human volition. It is then voluntary waste, according to the literal meaning of the words; and by construction of law it is voluntary waste in the defendant, as the law presumes he could have withstood it, et qui non obstat quod obstare potest facere videtur. This is also voluntary waste, according to the definition of the books. 2 Blk Com 281. 3 Blk. Com 223. 7 Bac. Ab. tit. Waste, 251. But admitting this to be permissive waste, case in the nature of waste is nevertheless the proper action to recover for it. Williams, in his notes to Saunders, says that case is now the usual action as well for permissive as voluntary waste. Greene vs. Cole, 3 Saund. 252, (note 7.) Pomfret vs. Rieroft, 1 Saund, 323, (note 7.) There can surely no reason be given why case should not lie as well for permissive as voluntary waste. The dictum of Sir James Mansfield, in Gibson vs. Wells, (and it is a mere dictum, for the point he assumed to decide was not before the court,) is entitled to very little respect. That was an action of trespass on the case, brought against a tenant at will for permissive waste. It is settled law that case will not lie against a tenant at will for any kind [**15]  of waste. Trespass will lie against a tenant at will for voluntary waste, but case will not. Countess of Shrewsbury's case, 5 Coke, 14. Countess of Salop vs. Crompton. Cro. Eliz. 777. Pantam vs. Isham, 1 Salk. 19. Sir James Mansfield was not, therefore, called on to decide in that case, whether case would lie for permissive waste. His assertion was wholly obiter. The reason given for this opinion is not less singular than the opinion itself. He will not maintain the action, because if he did, "such an action might be maintained against a tenant at will, who omitted to repair a broken window." He ought to have known that such an action would not lie against a tenant at will for breaking a window, or even pulling down the house. But it seems Sir James would not support the action, lest some litigious spirit should avail himself of it to sue for a trifling, contemptible injury; or in other words, he would block up one of the great public highways leading to the temple of justice, lest if kept open, some querulous vagabond might travel on it. A very comprehensive reason this, and might with equal propriety be applied to every other action known to the law. If this action is denied to landlords [**16]  for permissive waste, they have only to resort to the old action of waste, and recover treble damages, and that too for not repairing a broken window. In the Countess of Shrewsbury's case, the action was case for permissive waste, yet Lord Coke makes no objection to the form of action, on the ground of its being permissive waste. So in the case of Countess of Salop vs. Crompton, and in Pantam vs. Isham. The inference is therefore a strong one, that the judges did not conceive any objections could be made to the actions on that ground. In Radcliff vs. D'Oyley, 2 T. R. 630, it is expressly decided, that trespass on the case will lie for dilapidations suffered in a prebendal house by a prior incumbent. Dilapidations is permissive waste. The case of Herne vs. Bembow professes to adopt the principle decided in the Countess of Shrewsbury's case, but that case merely decides, that case will not lie against tenant at will for permissive waste. The case turns upon the character of the tenant, and not on the nature of the waste. It is, therefore, no authority, inasmuch as the court mistook the case they professed to be governed by. This is another of Sir James Mansfield's decisions. A declaration [**17]  on a voluntary escape may be supported by proving a negligent escape. Jones vs. Pope, 1 Saund. 35, (note 1.)

Winder, for the Appellee. Much doubt exists as to the law upon the subject under discussion, if there is any force in the argument of the counsel for the appellant. What was the remedy which the landlord had against his tenant? If waste would not lie, then it must be admitted that this action cannot be sustained. There is no decided case where an action has been maintained against a tenant, where the damage, no matter in what manner, was occasioned by a force against his will. Lord Coke fell into a great mistake, and that he did fall into mistakes subsequent decisions show. He refers to Brooke's Abridgment, and the Year Books; and it can be shown that the earliest decisions are against him. In his 2 Inst. 145, 146, he says, that the statute of Marlbridge "prohibiteth that farmers shall not do waste, and yet if they suffer a stranger to do waste, they shall be charged with it," &c. "and that the lessor shall have his action of waste against the lessee, and the lessee his action of trespass against him that did the waste; and that if the lessor should not have his action [**18]  of waste, he should be without remedy." The same idea is repeated in several passages in Co. Litt. 53, b; 255, a. He lays it down, that whoever does the injury, the landlord has remedy for it against the tenant. It is not true that the landlord has no remedy against the person who committed the injury. If it can be shown that there is no adjudication upon which Lord Coke founds the dictum, then must the dictum be disregarded. It is shown both in Jefferson vs. Jefferson, and Gibson vs. Wells, that Lord Coke was mistaken, and that he meant that the lessor had no remedy by an action of waste; and in Attersoll vs. Stevens it is said, that all practice is against the dictum of Lord Coke. The reason of the law given by Lord Coke has failed. What is the remedy by a tenant against a wrongdoer? It is trespass; but he cannot recover for an injury done to the inheritance; he can only recover for the injury done to himself. If trees are cut down, he can only recover for the damages occasioned by depriving him of their shade, but not for the value of the trees. If the tenant is liable for waste committed by a stranger, he is liable for all the injury done to the freehold. Can it be said that a [**19]  tenant, who has been obliged to abandon the premises by an overwhelming force, should be compelled to pay for the damages sustained? Is it reasonable that the landlord should recover of the tenant? Why should the tenant be answerable to the landlord more than any body else? He has nothing to do with the inheritance. He only acquires the rights of a tenant; all other rights remain in the landlord. No injury can be done to the one, without being done to the other. Is there then any reason that the tenant should be answerable, where he is injured, as well as the landlord? To give the remedy solely against the tenant, is to say that no one but the tenant can do an injury to the landlord. Suppose there are two persons, one holding in reversion, and the other in possession, is the tenant answerable to both for waste? In 22 Vin Ab. tit. Waste, the alteration made by the statute from what waste was at common law, is stated, and what was the remedy at common law, and how altered by the statute. At common law the tenant was not liable for waste committed by a stranger, but was made liable under the statutes; and that prohibition could only go to the tenant to prevent his doing waste--not that [**20]  he should prevent others. The action of waste against a tenant was given by statute. Lord Coke seems to have derived his information from the Year Book, 33 Hen. VI, p. 1. where no decision appears to have been made. The only part that looks like a decision is, that if the marshall was negligent and did not keep a guard, then he shall be answerable for an escape; but if the escape was occasioned by fire, then he is not answerable. In Bro. Ab. tit. Waste, pl. 15, the case in 33 Hen. VI is cited, and the dictum is relied on, that if strange enemies destroy the house, waste does not lie, but it is otherwise by enemies, traitorous subjects of the King. This is the only authority upon which Lord Coke has founded his dictum, and this is no authority. In 1 Co. Litt. 53, b, §  57. Fleta is cited, and it is said that waste and destruction are convertible terms; that for all accidents over which the tenant had no control he was not liable; and he is not liable for losses occasioned by accidental fires. If thieves burn the house, the tenant is not liable. 2 Inst. 303. At common law a tenant was not liable for the acts of a stranger, and until the statute no recovery could be had against him for [**21]  waste of any kind. Lord Coke did not even except the acts of the lessor himself; but said the tenant was liable in all cases, except in cases of injury by the act of God or the King's enemies. The true distinction is, that a tenant is only liable where he permits the waste, or might have prevented it, but did not do it, as it may be considered that he who gives permission to another to do an act, or may have prevented it, and would not, in fiction of law is supposed to have done the act. But for all accidents by fire, &c. the tenant is clearly excusable. If the tenant is not liable to the action of waste, then certainly he is not to the action on the case in the nature of waste. This action does not come in aid of the action of waste in all cases. That action is founded in technical fiction under the statute. The action on the case gives a remedy against the party who committed the injury, and to the extent of the injury, and may be brought by every person affected by the waste, against the tenant in possession or a stranger; but waste can only be brought by him that hath the immediate estate and inheritance in fee simple, or fee tail. 7 Bac. Ab. tit. Waste, (G) 263. 1 Inst. 53, b.  [**22]  285, a. 3 Saund 252, b (note 7). 2 Chitty's Plead. 344, (note q.) Ibid 336. If the landlord and tenant can both bring their action against the wrongdoer for the same injury, where is the boasted rights spoken of by Lord Coke? On this principle the landlord could recover against a stranger, and so could the tenant--the landlord could recover against both tenant and wrongdoer, and the tenant recover also against the wrongdoer, who could not plead in bar any recovery against him by the landlord. There would then be a double recovery against him, and a double satisfaction for the same injury. Suppose the tenant commences his suit against a stranger immediately after the injury is sustained, and the landlord lies back--The tenant could only recover for the injury done his possession. He could not recover for any other injury until the landlord had recovered against him. Could the tenant bring a new action against the wrongdoer, and recover the amount which the landlord had recovered against him. Besides, limitations might bar the tenant's second action against the wrongdoer. All this shows how irrational the doctrine is which is contended for on the other side. But the hardships attending [**23]  landlords, if they are compelled to resort to wrongdoers, has been urged. The hardships are as equally great on the part of tenants, and if either is to suffer, it ought to be the former. It is more reasonable that it should be the landlord, and not the tenant, who is to suffer. This action is not on the same grounds as the action of waste. It is founded on the real facts in the case, and gives a remedy against the wrongdoer. The court will probably be referred to the case of common carriers. With respect to them, and their liability, so is the law written, but with respect to tenants it is not so written. The liability of common carriers has been decided in numberless instances, and is well settled in the law. It is conceded that a tenant is answerable where he permits the waste; but it is denied that he is liable for that over which he had no control. There is no case in the books of an action on the case in the nature of waste, against a tenant for injuries done by a stranger, over which the tenant had no control, and could not prevent, and did not permit. There is no case of such an action where the injury was by a third person, no matter how done. If in the lapse of 600 years [**24]  there is no such case to be found, the inference is irresistible, that none such can be supported. This is a sufficient answer to every thing which has been or can be adduced upon the subject. In Jefferson vs. Jefferson, the action was against the tenant who did the injury. In Biddlesford vs. Onslow, the landlord sued the wrong-doing stranger. The defence set up there was, that the tenant should have brought the action, and not the landlord, for the overflowing and drowning wood, &c. But it was held that the landlord might recover for the injury done to the inheritance, and the tenant might sue for the damage done to his possession; that the tenant could not give a discharge against the damage done to the landlord. In Pantam vs. Isham, the landlord being seized of six stables, let one to the defendant, a tenant at will, and the rest to other persons for a term of years; by the negligence of the defendant in keeping his fire, it burned the plaintiff's stable, and also the defendant's, and the other five stables. It was held that no action lay against the defendant for the stable he took, but for the other stables an action would lie against him. This does not sanction the principle [**25]  that the landlord can sue his tenant for an injury done by a stranger. The Countess of Salop's case was for negligence by the tenant, and it is not denied that the action was not well brought. But it does not affect the case before the court.

At all events, the tenant is not liable for permissive waste, and this is proved by the authorities before referred to. The consent of the tenant makes it voluntary waste, without such consent it is permissive waste. Attersoll vs. Stevens, 1 Taunt, 189, per Chambre, J. The facts show in this case that it was permissive waste; and this being established, the action cannot be sustained. The precedents in Chitty's Pleadings are all for voluntary waste, and there are none against a tenant for permissive waste, because no such action will lie. The Countess of Salop's case, 5 Coke, 13. Gibson vs. Wells, 4 Bos. & Pull. 290. Herne vs. Bembow, 4 Taunt. 764. Tenants at will do not at this time exist in England. Rob. on Frauds, 244. Clayton vs Blakely, 8 T. R. 3. The declaration in this case is for commissive or voluntary waste, and the proof is that it was permissive waste. The action is founded on a tort on the part of the tenant, for which he is [**26]  liable in this form of action for voluntary waste; but for permissive waste, it is no tort committed by the tenant, and the only remedy of the landlord is an action on the contract against the tenant for a violation of his engagement, for which an action of assumpsit would lie. Herne vs. Bembow, 4 Taunt. 764. But for a positive wrong against the landlord, then the tenant is a tort feasor, and may be sued in this form of action; but he cannot be called a tort feasor for acts done which he could not prevent and did not consent to.

But if all the points urged are not sustainable, still the declaration does not set forth a case which is supported by the evidence, and therefore, the plaintiff cannot recover. It is said in 3 Saund. 252, b, (note 7.) that "it seems necessary in an action on the case, as well as in an action of waste, to state in the declaration the nature and kind of waste which is the subject of the action; and the plaintiff will not be permitted to give evidence of a different sort of waste from that which is laid in the declaration." Here the declaration charges commissive waste, and the proof is of permissive waste. There was no express agreement between the plaintiff [**27]  and defendant, and the plaintiff cannot rely on the implied assumpsit and prove a tort. Herne vs. Bembow.

Pinkney, in reply. The general doctrine is established, that a tenant is liable to his landlord for waste committed on the premises in his possession by a stranger. This has been handed down to us by all the elementary writers, and the great sages of the law. But it has been said that the doctrine originated in the blunders of Lord Coke, in laying down the general doctrine of waste. He has not been accused of such blunder by any one but by the learned counsel of the appellee. It is not the doctrine of Lord Coke alone; it is to be found so stated by Fitzherbert, Brooke and Moor, and by all the abridgers of the law before Lord Coke; and it has been assumed as a principle which nobody denied, either before or since Lord Coke. He did not invent the doctrine, and would not speak of femes covert, and infants, as being answerable for waste committed by strangers, unless it was well settled. Mr. Justice Heath, in Attersoll vs. Stevens, recognizes the whole doctrine for which we contend. He lays it down as "common learning, that every lessee of land, whether for life or years, is liable [**28]  in an action of waste to his lessor for all waste done on the land in lease, by whomsoever it may be committed." We cannot go amiss for the doctrine. Brooke and Lord Coke are sufficient authority for it. Without this right of the landlord to resort to his tenant, the law would be defective. It is like the case of a common carrier, founded upon great principles of public policy. If he is robbed upon the highway of money placed in his hands, he is answerable to the owner, because he had parted with his property. The reason of the law is equally applicable to a tenant He is the bailee for the benefit of his landlord, who cannot protect himself against strangers, and the tenant is there to protect him. This case cannot be distinguished in principle from that of a common carrier, and the law is as well settled with respect to the former as it is to the latter. The tenant being in possession on is presumed in the law to be able to prevent destruction to the premises. What is the presumption as to a common carrier? That be is able to protect the property in his possession. The presumption of law may be false, as it often is; and although the carrier may be obliged to submit to the force used,  [**29]  yet the law completes his liability. It is so as to a tenant; and it is as reasonable in the one case as it is in the other. It is for the great benefit of public justice; and although the rule may militate against moral justice, and it often does, yet a court of equity can give no relief. The liability of a tenant for the acts of strangers, is upon the ground that he has power to prevent them; and he who has power, though constructive, and does not exercise it, is considered as doing that which is done. So is a tenant in dower and by the curtesy liable for the acts of strangers, upon the ground that they had the power to prevent them, and not preventing them are considered as doing them themselves. If a common carrier is robbed, he is considered in the law as if robbed by himself. This is the same kind of action as that against a common carrier, who is considered, by construction of law, of being guilty of robbing himself, even where the robbery is committed by a force which he cannot resist. If a mob assails a gaol, breaks it open, and lets out the prisoners and debtors, still the gaoler is liable. Has the gaoler such an armed force as would prevent it? He is found in an unarmed [**30]  state. and cannot resist the force. Is the sheriff answerable? Whoever doubted it? The responsibility stands upon the same principles which govern as to tenants and common carriers. The new fangled notions of justice are, that he did every thing in his power to prevent the act, and therefore must be excused. But the law presumes he had the power to prevent the act, and although in fact he had it not, yet he is liable for the consequences. There are several modern decisions, which go to fortify the doctrine we contend for, and the right of the tenant to recover over against the wrong doer. 7 Bac. Ab. tit. Waste. The tenant has complete remedy with reference to his own and his landlord's injuries; as in the case of a common carrier, where the owner may pass by the carrier and sue the hundred, and recover the value of the goods of which the carrier is robbed, or the carrier may sue the hundred. The two cases are precisely analogous, and the tenant, or common carrier, may sue the wrongdoer without waiting to see whether the landlord or owner of the goods will sue. The remedy for waste was not merely preventive by a writ of Estrepement, or prohibition pendente placito, but it was also corrective [**31]  by a writ of waste against the tenant, founded partly upon the common law, and partly upon the statute of Gloucester. Blk. Com. 225. But it has been urged that accidental destruction of the premises by fire excused the tenant, and Fleta, liber 1, ch. 11, has been referred to. But Fleta means fire by lightning from Heaven--the act of God. It has never been decided that the tenant was not liable in the case of the destruction of the premises by fire, unless it was fire occasioned by lightning. If fire in every case was an excuse to the tenant, why was the statute of Anne passed? Why were strangers made liable in the case of lire, and the tenant not? There are only two exceptions--where the injury is done by the king's enemies and by the act of God. Waste is not an action which the law discountenances. It was interpreted an equitable action. Under the statute which enabled tenants in common to bring actions of waste, joint tenants were considered as included. The statutes of waste were favourites of courts of judicature. But where the house of the tenant is burnt by thieves in the night, the tenant, it is said, was not responsible. That, however, is not similar to the present case. Admit [**32]  that where there was no negligence on the part of the tenant, he is not liable. The defendant here is not in that situation. Was he free from negligence? He was aware of the mob, and introduced armed men into the house. What was the legal effect of this act of his? He rented a house as a dwelling, and appropriates it to another purpose. He is aware of the consequences, and converts the house into a fortress. He provides means of defence, and it is he who provokes the attack. He, therefore, is answerable for the consequences. He is in delicto. If the cases then turned upon the fact of negligence or not, as contended by the defendant's counsel, the defendant is certainly answerable. Go to the case of a common carrier--He is exempted by the act of God--If his bark is overset, he is excused; but suppose in a violent tempest he puts to sea, and is upset, is he not answerable? Surely he is, and it is in vain for him to rely upon the act of God as an excuse. Forward vs. Pittard, 1 T. R. 27. Colt vs. M'Mechen, 6 Johns. Rep. 160. Here the tenant, instead of retreating, provides the means of resistance. This is such conduct as would make him answerable, and is strictly within the case cited [**33]  from Co. Litt. and that of a common-carrier. The only exception which has been relied on, is one which, under its qualification, goes to defeat the defence set up by the defendant. In all cases where there is no fault, then, the tenant is not liable, is what the counsel for the appellee contends for; but he did not show that the defendant did no act to occasion the destruction of the house. The true rule, the counsel says, is that where the tenant connives at the injury, he shall be made to answer for the damage. And yet that would be a case where he could not sue the wrongdoer, because that would be to sue himself. He is a constructive participator in the waste. If he stands by and permits the injury, it is his own act; there is no occasion for authorities to prove this. The cases where there is a constructive power to repel the force, is that to which the law refers. It must be that the tenant is liable in every case, except as to the King's enemies, or that he is not answerable at all. Were it so that tenants were not liable, what innumerable frauds would be practised. Tenants would committ injuries, and charge them upon strangers. Permissive or negligent waste is just as much within [**34]  the statute as any other waste. If permissive waste is excluded from the statute, then there is hardly any waste upon which the statute can operate. The form of the writ of waste shows conclusively, that all sorts of permissive waste was covered by the statute. If the case of fire ever-did form an exception out of the law, it was for a reason which has no sort of application to the present case, except as it applies to negligence. But it is said, that the action on the case can only lie against the actual doer of the wrong. There has been no authority cited to prove this position. But the case of a common-carrier shows that this action lies against the common-carrier for an act done by a stranger--a robber. How can it be said then that no such action can be sustained against a tenant for injuries done to the premises by a stranger? The common-carrier is sued upon the ground of contract. So when a tenant enters into possession, he is bound to protect the premises, and the law constructively makes him adequate to protect them. The action against the common-carrier, and the action against the tenant, both charge constructive negligence. They are both assumpsit--both originating in contract.  [**35]  The action on the case is to be suited to the case as the action imports. How can it be said that it cannot be maintained when it is suited to the case? It was invented for the purpose of being suited to every man's case. It is a substitute for the old common law remedies, and has been applied to cases where waste would not apply. All the common law remedies were shackled, and this action was introduced to unshackle those remedies. This action lies for a nuisance, and a remedy is given to a tenant for years with respect to a right of common. He might elect certain specific remedies, and be restored if he succeeded. This action is substituted in the place of Novel Disseisin, and is given where before it could not be brought. The legal rights of the parties are inquired into, and if he had a right under the common law, then he may maintain this action. The court first decides what is lawful before they inquire whether it is equitable or not. Here they must take it as it stands, and are not to inquire whether it is equitable or not that the defendant should be made liable. But the justice of the case is with the plaintiff, and the record need only to be looked at to be so considered.  [**36]  It was a wrong committed against the plaintiff, to which she was no party, and in a legal point of view the injury originated by the misconduct of the defendant. There is no equitable principle which would not fix the defendant, and make him liable. It has been asked how the tenant was to recover against the wrongdoer? The answer to this is given in Co. Litt. 57, a (note 2,) where it is said that both the landlord and tenant can bring an action against the stranger to recover their particular interest; and so may the tenant bring the action to recover for himself and the landlord. Ibid (note 4.) The tenant may have either trespass or an action on the case, because he is answerable over in waste. He may sustain an action because he is liable to his landlord. At any rate it cannot be that if the landlord recovers of the wrongdoer, that the tenant can also recover of him for the same injury. There can be no such absurdity as a double recovery. But if the tenant recovers only to the extent of his right, there is nothing to prevent the landlord from recovering to the extent of his interest; and if the tenant recovered to the extent of his own and the landlord's interest, then the landlord [**37]  must resort to the tenant alone. The tenant is liable to the landlord in the first instance, and the landlord may resort to either the tenant or the stranger, but he cannot recover against both. But it has been urged, that the waste charged in the declaration is not voluntary, but permissive waste, and that the action does not lie for a permissive waste, if it does for a voluntary waste. We deny that this is permissive waste, but if it is, the action lies for it. There are two kinds of waste--1st. Voluntary or actual. 2d. Permissive or negligent. Voluntary waste is by the tenant himself, or by his servants, or by strangers, for which, in construction of law, he is liable Permissive waste is suffering the thing to go to destruction by the ordinary operations of time, and not by the act of man. Voluntary waste is attributable to man, and is the result of volition. The whole affair is a mere construction of law, and has nothing to do with the fact. It is admitted that a tenant is answerable for voluntary waste. It must be voluntary or actual, instead of permissive, having reference to human action. The court here are not driven to the conclusion of construing this to be permissive waste.  [**38]  Where the law by construction connects the man with the act, he is compelled to adopt it as his own act. The books have defined permissive waste more particularly than other kind of waste. It is for the consideration of the court upon principle looking to the reason of the thing. We consider it to be voluntary waste, but there is no direct authority upon the subject. If it is voluntary waste, and there is nothing to prevent this court from so considering it, then the defendant is concluded. But an action on the case may be brought for permissive as well as voluntary waste, and the plaintiff is not bound to count upon it as permissive waste. It is not said that this action does not lie for the waste complained of, as permissive waste, but it is contended that it will not lie for permissive waste at all. There is no reason why it should not. At common law the door was opened to all kinds of waste, whether voluntary or permissive; and with respect to tenants for life or years there was no distinction as to the nature of the waste. By permitting a remedy for voluntary waste, it was permitted for permissive waste; and in the opinion of the ancient law writers there was no distinction; nor [**39]  was there any distinction taken by the makers of the statute of Gloucester. If it is not in the common law, before the statute, where are we to search for it? If this is a proper action for voluntary waste, why is it not for permissive waste? Is the tenant's permitting the premises to go to ruin, to exempt him from liability for the injury? It is more natural that this action should lie for permissive than for voluntary waste; because for a voluntary waste, by strangers out of possession, an action of trespass vi et armies would lie. Is there any reason for excluding permissive waste with regard to the landlord or tenant? In the action of waste the tenant is liable for both kinds of waste. He was liable to treble damages, and the loss of the place on which the waste was committed. The change of action was to administer actual justice between the parties; and this action was received with open arms in the place of the action of waste. Why reject it then as applicable to permissive waste? If it is applicable to voluntary waste, it is more so to permissive waste. Is it not for the benefit of the tenant to substitute this for the action of waste? It surely must be; and it is for the benefit [**40]  of both landlord and tenant. Why drive the plaintiff to an antiquated action when more justice may be done in the present action? To prove that this action may be sustained, nothing more is necessary than to prove it will lie for voluntary waste. It may be shown that it has been the usage to recover for permissive waste. In Gibson vs. Wells, the reasons assigned by the chief justice stopped the further progress of the cause--that if the action was maintainable it might be brought against a tenant at will who omitted to repair a broken window. No action would lie either for waste, or on the case in the nature of waste, against a tenant at will. The opinion of the chief justice is that he might be answerable in an action of waste, but not in action on the case. This opinion is founded upon two reasons not only ridiculous, but false. Was it not better to bring this action for the small waste spoken of by the judge, than to bring the action of waste? What sort of reasoning then is that of the judge to establish a distinction calculated to compel landlords to do that which was inconsistent with mercy? And although on the trial of the above cause, several precedents were referred to showing [**41]  declarations for permissive waste, similar to that before the court, but as counts for waste wilfully committed had been joined, and that no express decision had been given on the point in question, the court adhered to their opinion. If there had been no express decision, there was practice, and that was sufficient. There was a time when practice was the first introduction of the law. Look at the opinions of the Serjeants of the Law--they are entitled to the highest respect, and adopted as the law. Precedents settled by counsel are admitted as evidence of the law, although formed without authority. In the precedents referred to, it is said that counts for permissive waste were joined with counts for waste wilfully committed; if the count for permissive waste was a bad one, it corrupted the good counts, and would have been reversed if a judgment had been rendered thereon; and never having been reversed, and although passed sub silentio, it is strong evidence of what the law is. It showed the opinion not only of the counsel who brought the actions, but of the counsel who defended the cases. The case of Gibson vs. Wells has been principally relied on by the counsel on the other side.  [**42]  He also relies on Herne vs. Bembow, where the same tribunal reiterated the same principle, that an action on the case would not lie against a tenant for permissive waste, but that assumpsit should have been brought--which was inventing a new form of action on an implied assumpsit. And the court said that this form of action could not be brought, because it sounded in tort. There are many cases of assumpsit founded on tort. The court cited the Countess of Shrewsbury's case, 5 Coke, 14, and the reasons given in that case do not justify the decision in Herne vs. Bembow. We wish no better authority than Lord Coke. We have the opinion also of Sergeant Williams, and every writer upon special pleading, that this action may be maintained against a tenant for permissive waste, and there was no suggestion to the contrary until that made by Sir James Mansfield. It is said so in Pantam vs. Isham, where it was shown to be the settled law, that permissive waste would lie against a tenant for life, or for years. But it is said, that if the waste complained of is permissive waste, it must be counted upon as such--and that here the allegata and probata do not agree. There is no authority to show that [**43]  if you go for permissive waste, you must lay it as permissive waste. There is no doubt but you may go for permissive waste, and lay it for voluntary waste. What was the plea at common law? There was no waste. Non fecit vastum; and this for permissive as well as for voluntary waste. There was but one form of a declaration in waste. The count followed the writ, and the plea followed the count. If it was so at common law, and this action is substituted for the action of waste, nothing more need be alleged in the one than in the other; and no reason can be given why it should. There was as much necessity that it should be stated in the declaration in an action of waste, that it was for permissive waste, as it is that it should be so stated in this action. Precedents showing a count for permissive waste, are not conclusive that it was absolutely necessary. In 3 Saund. 252, d, (note,) it is not said that if you go for voluntary waste you cannot give in evidence permissive waste, the latter being included in the former, whereas the former may not be included in the latter. The statute of Gloucester embraced permissive within the description of voluntary waste. If the common law made a person [**44]  who committed permissive waste, as included within that of commissive waste, then the admission of this action, as a substitute for the old action of waste, has the same effect. If it was included in the one, it is included in the other. But here the first count is sufficient without the aid of the second. In Govett vs. Badnidge, 3 East, 62, which was an action partly on contract, and partly on tort, and it was held that the gist of the action was tort, and not the contract out of which it arose.  

JUDGES:
The cause was argued on the second bill of exceptions before BUCHANAN, EARLE, JOHNSON, and MARTIN, J. MARTIN, J. dissented.  

OPINIONBY:
BUCHANAN; JOHNSON 

OPINION:

 [*390]  BUCHANAN, J. delivered the opinion of the Court, dissenting from the opinion of the court below in the second bill of exceptions.
JOHNSON, J. The action in this case was brought in Baltimore county court, to recover damages for a dwelling-house on Charles street, in the city of Baltimore, which was materially injured during the time it was let by the plaintiff to the defendant.
The facts as they present themselves on the bill of exceptions are: (He here stated the case.)
The declaration contains two counts,  [**45]  the one an action on the case in the nature of waste, the other on an implied undertaking to restore the property in good tenantable repair, alleging as the breach the destruction of the property by the defendant.
Actions of the present nature have been seldom if ever brought in this state; indeed a transaction similar to the present never before, and it is greatly to be deplored ever did, and it is hoped never will arise again, in which private property has been by force destroyed against the exertions of the civil authority, collected on the spur of the occasion for its preservation. But as the property has been destroyed, as between the landlord and tenant, the question is who must bear the burden of the loss?
In forming an opinion on the present subject it is not necessary to tract the law of waste, as it existed at common law, or as changed by the statutes of Marlbridge and of Gloucester; it is sufficient to observe, that those statutes make a lessee for years liable to the action of waste, in which when determined against the tenant, he forfeited the place wasted, and was compelled to pay treble damages.

 [*391]  Waste, vastum, is a spoil or destruction [**46]  in houses, &c. to the disherison of him that hath the remainder or reversion in fee simple or fee tail. The removing wainscot floors, or other things once fixed to the freehold, is waste. Co. Litt. 53. 4. Rep. 64. 2 Blk. 281.
Waste is voluntary, a crime of commission, as pulling down a house; or permissive, which is matter of omission only, as by suffering it to fall for necessary repairs.
If the property in question had been destroyed, as set forth in the plaintiff's claim, by the defendant himself, or by others at his instance, it is clear he made himself liable to an action of waste; wherein not only would have been recovered the house let, (supposing the lease not expired,) but treble damages. The injury done to the property would have assumed the denomination of wilful waste. But as the destruction was not, in the common acceptation of the term, made by himself, or by others at his instance, is he liable?
It is not novel in the law to make persons, morally innocent, responsible for the acts of those over whom they had no control. In various instances, where the property of the owner is placed in the care of another, such person is liable [**47]  to the owner for its loss, or for injuries done to it, which the possessor could not restrain.
The common carrier, the inn-keeper, the sheriff, and others not thought material to enumerate, are responsible for losses which they could not prevent. They stand liable to the owner for all losses, whether sustained by highway robbers, or others, no matter how incontrollable and irresistible may be the force with which they are assailed. The act of God, and of the public enemies, will only free them from the demand, when the loss proceeded from such act or such enemies, and then only when they are free from every exception.
If the law was otherwise, by conniving with the robbers and thieves, no property could be safe in their custody; it would scarcely ever be in the owner's power to ascertain whether the loss was the result of concert, or of force--whether the alleged attack might or might not have been resisted. To free them from all temptation to swerve from their duty, and to secure an effectual remedy to those who intrust them with their property, all excuses of the kind spoken of are precluded; for it is better that, occasionally, the loss should fall on an innocent person,  [**48]  than to relax, and in effect, to defeat all liability.
At the common law all such as were liable to the action of waste, no matter what might be their situation, no matter what might be the power to repel the waste from being done, if it was committed, they were bound to respond. The infant age of the tenant would not free him from the responsibility. Under the statutes of Marlbridge and Gloucester, the same liabilities are cast on the tenant for years.

 [*392]  The defendant, in the case before the court, comes within the purview of those statutes, and must therefore be responsible, unless the overwhelming force, by which the injury was done, exonerates him.
As the property of the landlord is placed in the tenant's possession, who has the legal power to prevent all waste from being done to it, and to recover for it, when committed, as in most instances it would be impossible for the landlord to ascertain in time, or come at the wrongdoer, it appears to have been the policy of the law, to cast the liability on the part of the tenant for all waste committed on the property, except when caused by the act of God, or of the King's enemies. But let it, for argument's sake,  [**49]  be conceded, that if the defendant had continued to use the house for the purpose it was let to him, and that whilst so used, the lawless multitude attacked and destroyed it, that he would not have been liable, a point not necessary to be determined in this case; yet as he did of his own authority, without the consent of the plaintiff, divert the house to a totally different and much more dangerous purpose, well aware of the risk which the property would thereby have to encounter, on principles of law and justice, as between him and the plaintiff, he becomes responsible for the consequences.
If the common carrier, who puts to sea during a storm, or on its approaching, cannot exonerate himself from the loss the storm may produce, which he attempted to buffet, so it appears equally just that a tenant, who applies the property to a different purpose than it was let to him, aware of the great increase of risk, in consequence of such diversion, must bear, and not cast the responsibility on the landlord. My opinion, therefore, is, that on principles of law and justice, the merits of the case are with the plaintiff.
The action of waste appears to have given way to,  [**50]  or been superseded by, the action on the case in nature of waste, which is the first count in the present declaration. Two grounds have been relied on against the first count:
1st. That the evidence does not support the count; and
2d. That if the defendant was liable, yet as the waste was permissive, and not voluntary, an action on the case, in the nature of waste, will not lie.
The declaration, it is true, states the destruction of the property to have been made by the defendant, and by those taken into the house by him.
In common parlance a person cannot be said to have done an act which was done by another; nor can he be charged with causing a destruction to take place when every exertion in his power was used to prevent it. But in the legal acceptation of the charge, he who does certain acts, by others, is said to have done them himself. Qui facit per alium facit per se. If the tenant is generally responsible for all waste committed by strangers, no matter how overwhelming the power, how much more strong is the case 

 [*393]  before the court, when the property in question was applied to a different object than that for which it was let; the defendant [**51]  having reason to believe that in consequence of such application "the house would be attacked by a lawless armed and unknown multitude"--As, between the plaintiff and defendant, the acts of the multitude produced by the acts of the defendant and those in concert with him, must be imputable to the defendant himself, and of course the charge, as contained in the count, is correct.
The second objection to the count by the preceding reasoning is also removed; for, if the defendant is to be liable as of himself, for the waste committed by the lawless multitude, then it follows that the destruction to the property in question, comes strictly under the denomination of voluntary waste, for which, no doubt is entertained but that the present action is applicable. It would then appear that there is no need to form an opinion, whether the action on the case, in the nature of waste, will, or will not lie for permissive waste; but the inclination of my mind is, that that action will be sustained as well for the one as for the other description of waste. It is a form of action, long since introduced, to recover for such injuries; it is an equitable action, and ought not to be discountenanced;  [**52]  it confines the recovery to the real loss sustained; and I see no reason to say that it will not lie in all cases, and against all persons, who are at common law, or under the statutes of Marlbridge and Gloucester, made liable to the action of waste.
As the case is covered by the first count in the declaration, I deem it totally unnecessary to add whether the evidence sustains the second.
The opinion of the court below, as pronounced on the second bill of exceptions is erroneous, and the judgment obtained in consequence thereof is reversed.
MARTIN, J. dissented.
JUDGMENT REVERSED, AND PROCEDENDO AWARDED.  

3 of 22 DOCUMENTS 

HARDEN & CARSON vs. MOORES, Garn. of PRESBURY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

7 H. & J. 4; 1825 Md. LEXIS 4 

December, 1825, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Harford County Court. This was a writ of attachment on judgment, issued out of Harford county court on the 16th of December 1822, and directed to the sheriff of that county, reciting the recovery of a judgment in Baltimore county court on the fourth Monday in March 1820, by Samuel Harden and Nehemiah Carson, (the now appellants,) against George G. Presbury 3d, for $ 300 current money damages, and $ 7 27 1/3 costs; that on the 10th of May 1822 a writ of fieri facias, directed to the sheriff of Harford county, issued out of Baltimore county court on the said judgment, against the said Presbury, returnable to Harford county court on the     Monday in August then next; that on the fourth Monday of August 1822, being the return day of the said writ, the said Harden and Carson produced before Harford county court a short copy of the judgment aforesaid, attested and certified by William Gibson, esquire, the clerk of Baltimore county court aforesaid, under his hand, and the seal of Baltimore county court aforesaid, before which latter court the judgment aforesaid was had and obtained; that on the said fourth Monday of August 1822, the sheriff of Harford county returned the [**2]  said writ of fieri facias, endorsed nulla bona. The sheriff was therefore commanded to attach any of the lands, tenements, goods, chattels and credits, of the said Presbury, &c. (in the usual form of writs of attachments on judgments,) and make return thereof to Harford county court on the second Monday of March then next. At the return day, (March 1823,) the sheriff certified that he had "attached credits in the hands of Parker Moores, to the amount of $ 1700, in the presence of Hambleton Morgan and Thomas S. Bond." The garnishee appeared and imparled, (Presbury being called made default.) At the next term, (August 1823,) the plaintiffs exhibited interrogatories to be answered by the garnishee, and on motion of the plaintiffs it was ruled by the court that he should answer them by the next term, to which time the garnishee again imparled. At the next term, (March 1824,) the garnishee answered the interrogatories on oath, and then moved the court to quash the writ of attachment; which the court did, with costs to the garnishee, and the plaintiffs appealed to this court.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

An attachment on judgment cannot be issued from one county court to another county court.

The proceeding by attachment is not considered as embraced by the general term execution, as used in the acts of October 1777, ch. 12, and 1794, ch. 54.

If a defendant shall fly, remove, or absent himself out of the county in which a judgment is rendered against him, the court of the county, in which he may happen to be, may, upon the production of a transcript of such judgment, award an execution by ca. sa. fi. fa. or attachment.

If a defendant shall remove from the county in which a judgment is rendered against him, an execution may issue from the court of such county, to the sheriff of the county in which the defendant shall reside, &c.

Upon the return of a nulla bona on a fieri facias, issued in the county in which a judgment has been rendered, the clerk of the court of that county may issue a fieri facias against the goods, &c. of the defendant, in any other county, &c.

Executions, thus issued, may be renewed out of the county court to which they shall be returned.  

COUNSEL:
Mitchell, for the Appellants, contended, that the judgment of the court below was erroneous--1.  [**3]  Because the transmission of the short copy of the judgment, under the act of assembly, put the county court of Harford as fully in possession of the cause as if the judgment had been originally rendered there. 2. Because the proceedings were regular on the face of them, and that a motion to quash the writ was not the proper mode of taking the benefit of any defect, if any existed; but that the same should have been done by plea or demurrer. 3. Because whatever defects might exist in the original proceedings against Presbury, the garnishee could not avail himself of them by way of defence to the attachment, that being in the nature of an execution. To show that the proceedings were regular, he referred to the acts of October 1777, ch. 12; 1794, ch. 54; 1795, ch. 23; and 1715, ch. 40, s. 7. If the fieri facias issued irregularly in not setting forth the issuing of the first fieri facias, it could only be set aside by Baltimore county court, and then only at the instance of the party affected by it. Jackson vs. Bartlett, 8 Johns Rep. 361. The garnishee should have pleaded the fact, as it could not be decided on motion to quash the writ. 1 Com. Dig. tit. Bail, (R 3) 704. Cholmondely vs.  [**4]  Bealing, 2 Ld. Raym. 1096. Ball vs. Russell, Ibid 1177. 5 Com. Dig. tit. Pleader, (3 L 14,) 783. The motion should have been made at the return day of the writ, and by imparling it was waived by the garnishee. 1 Tidd's Pr. 90, 91, 165, 190, 435. 4 Com. Dig. tit. Execution, (G) (H) 136, 137.

Maulsby, Gill and Speed, for the Appellee. By the act of 1715, ch. 40, s. 7, an attachment on judgment may be issued to the sheriff of the county wherein the judgment was rendered. If the defendant shall remove or absent himself out of the county, then, upon a transcript of the judgment under seal, an attachment may be issued thereon in any county where the defendant shall happen to be. 1715, ch. 41, s. 8. By the act of October 1777, ch. 12, s. 3, where the defendant has removed out of the county, an execution may be issued from the county court where the judgment was obtained, to the county where the defendant shall reside; and the plaintiff, to entitle himself to the benefit of the execution, shall produce a short copy of the judgment. Such execution may if necessary be renewed from time to time out of the court of the last mentioned county. 1795, ch. 23. The act of 1794, ch. 54, s. 9, authorises [**5]  the issuing of a fieri facias to any other county than that in which the judgment was rendered, where a previous fieri facias has issued to the sheriff of the county where such judgment has been obtained, and is returned nulla bona. The plaintiff, to entitle himself to the benefit of such execution, must produce an attested short copy of the judgment. Such execution may, if necessary, be renewed from time to time out of the court of the last mentioned county. 1795, ch. 23. There is no act of assembly which justifies the proceeding in this case. Here the foundation for issuing the attachment out of Harford county court, is a fieri facias from Baltimore county court, on a judgment rendered in that court, with a short copy of the judgment, in which writ of fieri facias it is not stated that any former fieri facias had been issued, and was returned nulla bona, so as to justify the issuing the fieri facias to Harford county court. It is true the writ is endorsed "fi. fa. to Harford county, after 2d fi. fa;" but this will not be urged as evidence of the fact, that a previous fieri facias had been issued, and was returned nulla bona. The court cannot presume that a former fieri facias had [**6]  issued, and was returned nulla bona. The fieri facias does not show it, and there is no proof of the fact. Nor is there any proof that the defendant had removed from Baltimore county, so as to entitle the plaintiffs to a fieri facias to Harford county. The acts of ministerial officers are not to be presumed to be according to law in the absence of all proof. Their acts are to be strictly construed, their authority being prescribed by law. To show that the process of the court recite all the facts, they referred to the forms in 2 Harr. Ent. 689, 629, 57, &c. To show that the attachment laws, and all laws delegating a special jurisdiction, must be strictly pursued, they referred to Shivers vs. Wilson, 5 Harr. & Johns. 133. Wicks vs. Caulk, Ibid 42. Mandeville vs. Jarrett, 6 Harr. & Johns. 497. The clerk of Baltimore county court had no authority to issue the fieri facias unless a nulla bona had been returned on a previous fieri facias. It having improperly issued, it is void. Purl's Lessee vs. Duvall, 5 Harr. & Johns. 77. The fieri facias is irregular and void on another account--it has no return day. West vs. Hughes, 1 Harr. & Johns. 6. Read vs. Markle, 3 Johns. Rep. 523. Tidd's Pr.  [**7]  1000. 2 Bac. Ab. tit. Execution, (P) 739. 6 Com. Dig. tit. Return of Process, 96. Baltimore county court could not act upon the fieri facias, as it was not before them, having been made returnable to Harford county court. By the act of 1795, ch. 56, the garnishee may make the same defence which the original defendant could make. He can protect his own rights, and those of his creditor; and they are not to be regarded as strangers. 2 Bac. Ab. tit. Customs of London, (H) 258. The fieri facias was issued on the 10th of May 1822, on a judgment stated to have been rendered in March 1820, and there is no continuance stated to shew that executions had issued from time to time so as to keep the judgment active. By the act of 1715, ch. 40, s. 7, the garnishee is called upon to show why condemnation should not pass. The motion to quash the attachment is the proper mode.

Mitchell, in reply. The fieri facias was made returnable in August, the time of the meeting of Harford county court, as fixed by the act of 1811, ch. 108, of which all persons are bound to have knowledge, it being a public law. This case does not fall within the decision in West vs. Hughes. The jurisdiction of magistrates [**8]  is limited, but that is not the case with the county courts. The county courts may amend their process, which cannot be done by magistrates, and in this instance the process might have been amended. 1 Sellon's Pr. 520. Baltimore county court were not bound to insert in the fieri facias, that a former one had been issued and returned nulla bona. 1 Sellon's Pr. 535, (G) 518, (C) 537. Bail can only take advantage of a ca. sa. not having been returned non est against his principal, by pleading the fact, and cannot move on that account to quash the scire facias upon the ground that no such ca. sa. had been issued. In Barney vs. Patterson's Lessee, 6 Harr. & Johns. 204, an attachment issued a term after it was awarded, and although it was irregular, yet it was held not to be void. So in Winingder vs. Diffenderffer, 5 Harr. & Johns. 181. The irregularities in this case were merely clerical, which the court could amend. Duvall vs. Wells, 4 Harr. & M'Hen. 164. The court should not have quashed the writ, but ought to have amended it. If there had been a recital in this fieri facias, that a previous one had issued, and had been returned nulla bona, it would no more clothe Harford county court [**9]  with jurisdiction, than if there was no such recital. The fact that such a fieri facias had not issued, and been so returned, should have been pleaded, that the plaintiffs might show, if such was the case, that they had issued a former fieri facias, and that it had been returned nulla bona.  

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

OPINIONBY:
BUCHANAN 

OPINION:

 [*9]  BUCHANAN, Ch. J. delivered the opinion of the court. This is the case of an attachment, issued out of Harford county court, on a judgment obtained against George G. Presbury, in Baltimore county court, which, after interrogatories filed and answered by the garnishee, was quashed by the court, on motion.
The question to which we have directed our attention is, whether an attachment will lie in any and what case, from one county court, on a judgment rendered in another? And that depends on the construction of several acts of assembly, which will be very briefly considered. Under the act of 1715, ch. 40, s. 7, "the plaintiff in a judgment may, instead of any other execution, take out an attachment against the goods, chattels and credits, of the defendant in the judgment.  [**10]  " But that act only authorizes the suing out attachments on judgments, from the courts in which the judgments are rendered, and has no application to this case.
By the act of 1715, ch. 41, s. 8, if a defendant in a judgment shall fly, remove, or absent himself out of the county in which the judgment is rendered, the plaintiff may take a transcript of the record of the judgment, under seal, and lay it before the court of the county in which the defendant may happen to be, to be entered upon the records of such county, upon which, that court is authorized to award execution by capias ad satisfaciendum, fieri facias or attachment.
That act relates only to the case of a defendant who shall fly, remove, or absent himself from the county in which a judgment is rendered against him; and though, by that act, an attachment, by way of execution, will lie from one county court, on a judgment rendered in another, yet it is a proceeding authorized only in the court of the county in which the defendant may be, and on the production alone of a transcript of the record of such judgment, under the seal of the court in which it was obtained. Which certainly is not this case. It is not the [**11]  case of an attachment awarded by Harford county court on the production of a transcript of the record of a judgment rendered in Baltimore county court against Presbury, who had fled, removed, or absented himself from Baltimore county, and was then in Harford county; but of an attachment, sued out of Harford county 

 [*10]  court, on a return to that court of nulla bona, by the sheriff of Harford county, on a writ of fieri facias issued out of Baltimore county court, and directed to him, upon a judgment rendered in Baltimore county court against Presbury, accompanied by the production of a short copy of the judgment. And to show that the attachment regularly issued, the acts of October 1777, ch. 12, s. 3; 1794, ch. 54, s. 9, and 1795, ch. 23, s. 1, have been referred to, by which it will be seen, on examination, do not authorize such a proceeding.
By the act of October 1777, ch. 12, s. 3, if a defendant in a judgment shall remove from the county in which the judgment is rendered, to any other county, an execution may issue from the court in which the judgment was rendered, to the sheriff of the county [**12]  in which the defendant shall reside, returnable to the court of that county; and it is only made necessary for the plaintiff to produce a short copy of the judgment before the court, to which the execution is returnable, to entitle himself to the benefit of such execution. The act of 1715, ch. 41, it has been seen, relates to the case of an absconding debtor, and authorizes an attachment to be awarded by the court of the county in which he may happen to be, on the production of a transcript of the record, and in no other case.
The act of October 1777, ch. 12, relates to the case of a removal by the defendant, for the purpose of residence; in which the execution is to be issued from the court in which the judgment was rendered, returnable to the court of the county in which the defendant may reside; with no authority to that court to issue any execution by attachment or otherwise, on the production of a short copy of the judgment; which was the only evidence that was produced in this case to the court of Harford county, of a judgment against Presbury in Baltimore county court. The ninth section of the act of 1794, ch. 54, gives to judgment creditors [**13]  this further remedy, that upon the return of nulla bona on a fieri facias, issued in the county, in which a judgment has been obtained, the clerk of the court of that county is authorized to issue an execution against the goods and chattels, lands and tenements, of the defendant, in any other county, returnable to the court of the county in which such goods and chattels, lands and tenements, 

 [*11]  may be and lie, without respect to the residence of the defendant. And by this act too, it is only made necessary for the plaintiff, to entitle himself to the benefit of such execution, to produce before the court, to which it shall be returnable, a short copy of the judgment. This act, no more than the act of October 1777, ch. 12, authorizes the issuing an execution of any kind, out of any county court, on the production of a short copy of a judgment rendered in a different county. But like that act, does no more than give authority to the clerk of a county court, in which a judgment is rendered, to issue an execution on such judgment, returnable to the court of another county; with this difference only, that by the act of 1777, ch. 12, an execution so [**14]  issued, is to be returned to the court of the county in which the defendant shall reside, and by the act of 1794, ch. 54, to the court of the county in which the goods and chattels, lands and tenements, of the defendant, may be and lie. And attachment is not an ordinary process, by which to arrive at the fruits of a judgment, and will only lie, when specially authorized; as by the act of 1715, ch., 40, s. 7, from the court in which the judgment was rendered, against the goods, chattels and credits, of the absent defendant; and by the act of 1715, ch. 41, s. 8, from the court of the county in which a defendant may happen to be, who has fled, removed, or absented himself from the county in which the judgment was rendered, upon the production of a transcript of the record. The proceeding by attachment, therefore, is not considered as embraced or intended by the general term execution, as used in the acts of October 1777, ch. 12, and 1794, ch. 54, which is only to be understood, according to its ordinary and familiar acceptation. And the act of 1795, ch. 23, s. 1, which has been mainly relied upon, authorizes the same kind of execution [**15]  only that is authorized by the acts of 1777, ch. 12, and 1794, ch. 54, and gives no original authority to the court of one county to issue an attachment in nature of an execution, or any other execution on a judgment rendered in another. But only authorizes, when executions have been sent from one county to another, according to the provisions of the acts of 1777, ch. 12, and 1794, ch. 54, the same kind of executions to be renewed out of the county court, to which the preceding executions were 

 [*12]  returned, and to be proceeded upon, as if the judgments had been rendered in such courts--that is, the renewed executions to be so proceeded upon. The language of the act is: "that in all cases where any execution has been, or shall be sent, with an attested copy of the judgment whereon the same may have been issued from one county to another, according to the provisions of the act passed at October session 1777," &c. "and of the act passed at November session 1794," &c. "the same proceedings shall and may, upon the return of such execution, be had thereon in the county court of the county to which such execution has been, or shall be [**16]  sent, as if the said execution had been originally issued by the said court on a judgment obtained therein; and the same execution may, if necessary, be renewed from time to time, in virtue of such attested short copy of the judgment, out of the county court to which such original execution shall have been returned, and be proceeded upon in like manner as if the judgment in such case had been rendered therein." The renewal here provided for, has reference to the original, and the terms "the same execution may be renewed," can only mean, that another execution of the same kind may be issued, and not that a different kind of execution may be issued, which would not be a renewal of the former. And the original in this case from Baltimore county, being a fieri facias, it was a fieri facias only that was authorized to be issued from Harford county court, and not an attachment, which was not a renewal of the original, or in the language of the act, the same execution; but of an entirely different character, and only authorized by the act of 1715, ch. 41, s. 8, to be awarded, in the class of cases therein provided for, by a court,  [**17]  other than that in which the judgment is rendered, upon the production of a transcript of the record, and by no act, upon the production of a short copy of the judgment only. And as neither the act of October 1777, ch. 12, nor the act of 1794, ch. 54, authorizes the issuing an attachment from one county to another, so neither does the act of 1795, ch. 23; but the whole office of that act is to secure to a plaintiff suing out an execution from one county to another, according to the provisions, either of the act of 1777, ch. 12, or of the act of 1794, ch. 54, the full benefit of such execution; and also to authorize the renewing, 

 [*13]  if necessary, such execution from the county court to which it may be returned. And it provides in no case for the issuing an attachment, in nature of an execution on a judgment, from the county court in which such judgment is rendered, to another county, but leaves the law upon that subject as it was before.
But even if an attachment was embraced by the general term execution, as used in the acts of October 1777, ch. 12, and 1794, ch. 54, yet no attachment having been sent from Baltimore county to Harford [**18]  county, there was nothing to authorize the issuing an attachment from the county court of Harford; that court being clothed with no authority to issue an original execution of any kind in the case, but only to renew such as might be sent from Baltimore county, accompanied by a short copy of the judgment. And if, moreover, the act of 1795, ch. 23, could be understood by the terms, "and the same execution may, if necessary, be renewed," as authorizing the issuing any kind of execution, different from the original returned, still this case is not covered, which is not founded upon, and if it was, could not be sustained under the act of October 1777, ch. 12. It is not stated in the proceedings, nor does it in any manner appear, that Presbury was residing in Harford county, and that act authorizes an execution, of no kind, to be issued from the county court in which a judgment is obtained, to any county, other than that in which the defendant shall reside; and any renewal, founded upon the return of an original execution that issued without authority, must be irregular--the act of 1795, ch. 23, only authorizing renewals of executions sent from one county [**19]  to another, by the court to which they are returned, where the original executions are sent "according to the provisions of the acts" of October 1777, ch. 12, and 1794, ch. 54. And if these proceedings are to be considered as founded upon the act of 1794, ch. 54, after a return of nulla bona to Baltimore county court, it will make no difference. That act, upon the return of nulla bona, on a fieri facias, in the county in which a judgment has been rendered, authorizes the issuing an execution against the goods and chattels, lands and tenements only, of the defendant, lying and being in any other county, returnable to the court of the county 

 [*14]  in which such goods and chattels, lands and tenements, may be and lie; and authorizes no execution by attachment, or otherwise, to be sent to a foreign county, against any thing else than the goods and chattels, lands and tenements, of the defendant. And there is nothing in the act of 1795, ch. 23, under any construction of it, that authorizes the court of a county, to which an execution has been sent from another county, according to the provisions of the act of 1794, ch. 54, to issue any other execution [**20]  than such as could have been sent from the county in which the judgment was obtained In this case a fieri facias was sent from Baltimore county, where the judgment was rendered, to Harford county, to affect such goods, &c. of the defendant, as might be there; and if an attachment could, under the act of 1794, have been sent, it could only have been against the goods and chattels, lands and tenements, of the defendant, and not against his credits. But upon the return to Harford county court of nulla bona, on the fieri facias sent from Baltimore county, and the production of a short copy of the judgment, an attachment, in nature of an execution, was sued out of that court, by way of renewal, against the lands, tenements, goods, chattels and credits, of the defendant; by virtue of which the credits alone of the defendant were attached in the hands of Moores, the garnishee, against which there was no authority for issuing an attachment from that court, if an attachment could have been issued at all. And having, in any view of the subject, as we think, improvidently issued, it was properly quashed on motion.
JUDGMENT AFFIRMED.  

4 of 22 DOCUMENTS 

HORNE, et al. Lessee, VS. LYETH.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

4 H. & J. 431; 1818 Md. LEXIS 21 

October, 1818, Decided 

PRIOR HISTORY:
 [**1]   EJECTMENT in Baltimore County Court for a lot of ground in the city of Baltimore, No. 642, being part of a tract of land called Lunn's Lot. At the trial in the county court, it was admitted that John Eager Howard was, on the 2d of November 1782, seized and possessed of a lot or parcel of ground situate on Howard-street, in the city of Baltimore, beginning at the intersection of Howard-street and Lexington-street, and running thence, binding on Lexington-street, 4 1/2 perches, thence S. parallel with Howard-street, to Dutch Alley, thence E. with Dutch Alley to Howard-street, and thence N. binding on Howard-street to the beginning, known and distinguished on the plat of the city by the No. 642, and is part of a tract of land known by the name of Lunn's Lot, long before that time granted to Edward Lunn. That John Eager Howard being so seized and possessed of said lot, by deed, duly executed, leased the same, with the appurtenances, to Matthias Setler, his executors, administrators and assigns, for the term of 99 years; and that Setler afterwards, by virtue of said deed and demise entered into possession; and being so possessed thereof afterwards, on the 12th of October 1785, did duly [**2]  make and execute his last will and testament; and afterwards, on the 1st of September 1787, died in possession of the premises, leaving his said will in full force, whereby he bequeathed, among other things, as follows, viz. "Item. I give and devise to my grandson Jacob Settler, (son of Matthias Settler, Junr.) all that house and lot in Baltimore Town situate between the houses of Messrs. James Allen and Charles Duhl, to him my said grandson, his heirs and assigns, for ever; nevertheless I do hereby bequeath the use and benefit of the said house and lot to my son Matthias Settler, junior, during his natural life, and at his decease to descend as above directed. Item. I give and devise to my daughter Catherine the house and lot whereon I now live, with the annual income of three pounds two shillings and six pence current money, payable to me as ground rent from negro Fanny, and also the annual sum of four pounds sterling, payable to me as ground rent from Mr. Wall; all which property, and annual sums of money, I give to my said daughter during her natural life, and after her decease, I give the same to the heirs of my said daughter Catherine; and it is my express will and desire, that [**3]  my said daughter possess and enjoy the said property from and after the decease of my wife Catherine, and not before. Item. I give and devise to my loving wife Catherine, all the rest, residue and remainder, of my estate, both real and personal, with all sums of money and interest due, or thereafter to become due, during her natural life, so that she do not waste any of the principal or original stock. And further, my will and pleasure is, that after the decease of my wife Catherine all my estate, both real and personal, (not specially herein before devised,) be divided among my five children, (to wit,) Abraham, Isaac, Jacob, Matthias, and my daughter Mary Strawman, in the following manner, viz. Each of them first charging him or herself with the respective sums charged to them in my books or papers of account, and then respectively draw from the residue of my estate such sum as shall make my said four sons, and my daughter Mary Strawman, all equal share and share alike." It was further admitted, that the house and lot mentioned in the said will, and thereby devised by the testator to his daughter Catherine, is the house and lot and premises in the said declaration mentioned, and for [**4]  the recovery of which this suit is prosecuted, and is a part of the lot of ground so demised to the said Matthias; and also that the wife of Matthias entered under and by virtue of said devise in the will of Matthias, and was possessed of the said house and lot so devised to her, and departed this life in the life-time of Catherine her daughter. It was also further admitted, that Catherine, the daughter of Matthias, on or about the 28th of February 1792, was duly married to a certain Philip Horne, by whom she had three children, to wit, Henry, Jesse and Eliza, all of whom were born before Philip's death, which happened on or about the 10th of January 1796; and further, that Catherine, the widow of Philip, was afterwards duly married to a certain Jacob Diffenbaugh, to wit, on or about the 22d of September 1796, and that after the death of her said mother, the said Jacob and Catherine having entered into the said house and lot and premises, and being possessed thereof, and of the remainder of the said term therein yet unexpired, under and by virtue of said demise, they, the said Jacob and Catherine, did on the 3d of December 1799, duly execute a deed, assigning unto a certain Samuel [**5]  Lyeth, his heirs and assigns, the aforesaid house, lot and premises, and their said term therein. It was further agreed, that Jacob and Catherine both departed this life before the institution of this suit, leaving one only child, a daughter, named Maria, who also, before the institution of this suit, was duly married to Henry Pope, one of the lessors of the plaintiff, and is yet living; also that the said last mentioned Catherine departed this life on or about the 12th of September 1815, leaving at the time of her death the aforesaid children Henry, Jesse, Eliza and Maria, her heirs and representatives, of whom Henry is the oldest, and he and the said Jesse are two of the lessors of the plaintiff, and that the said Eliza was, before the institution of this suit, duly married to Solomon Jones, one other of the lessors of the plaintiff, and is still living. The leases, entries and ousters, in the said declaration stated and set forth, are admitted; also that since the commencement of this suit Samuel Lyeth hath died, as hath been suggested, having first duly made his last will and testament, and thereby devised the house and lot and premises aforesaid to Kezia Lyeth, his widow, during [**6]  her natural life, and after her death to his son John Lyeth. It was also admitted, that the property bequeathed by the testator, Matthias Setler, to his grandson Jacob Setler, (son of Matthias Setler, Junior,) is leasehold property. Upon this state of the facts the plaintiff prayed that the court would direct the jury to find for the plaintiff.  

DISPOSITION:
Verdict and judgment for the defendant.  

HEADNOTES:

M S, possessed of a term of years in a lot of ground bequeathed it as follows. "I give and devise to my daughter C the house and lot whereon I now live; all which I give to my said daughter during her natural life, and after her decease, I give the same to the heirs of my said daughter C"--Held by Baltimore county court, that C was entitled to the whole of the unexpired interest in the term.  

COUNSEL:
Martin, (Attorney General,) and Mitchell, for the Plaintiff.

Pinkney and Scott, for the Defendant.  

JUDGES:
DORSEY, Ch. J.  

OPINIONBY:
DORSEY 

OPINION:

 [*433]  DORSEY, Ch. J delivered the opinion of the Court. It is stated and admitted that Matthias Setler, being possessed of a term of years in a lot of ground situate in the city of Baltimore, by his last will and testament, bequeathed it as follows: "I give and devise to my daughter Catherine the house and lot whereon I now live, all which I give to my said daughter during her natural life, and after her decease I give the same to the heirs of my said daughter Catherine."
The question arising on this will is this--What interest did Catherine, the daughter of the testator, take under this devise? The counsel for the plaintiff have argued [**7]  that she took only an estate for life, and that after her death, her children, the lessors of the plaintiff, were entitled to the residue of the term. On the part of the defendant it has been urged, that Catherine, the daughter, under the true construction of the devise, was entitled to the whole of the unexpired interest in the term.
If this had been a devise of real estate the case would be too clear for argument. Because where land is limited to a person for life, and after his decease to his heirs, or the heirs of his body, the remainder to the heirs, or heirs of the body, is immediately executed in the ancestor, who becomes seized of an estate of inheritance. So if there be a lease for life, with divers remainders over, remainder to the right heirs of the first lessee, or to the heirs of his body; this is a remainder vested in the first lessee for life; and after his death, and the determination of the intermediate remainders, his heirs shall be in, as heir and not as a purchaser. For in those cases the words "heirs," or "heirs of the body" are not named as words of purchase, but only to express and limit the estate intended to be conveyed; and no presumed intention arising [**8]  from the circumstance of the estate being limited, in the first instance, for life, will be permitted to control their operation as words of limitation. Shelley's case, 1 Coke, 96. 2 Roll. Abr. 417. Fearne, 28. Upon those general principles certain exceptions have been engrafted, in which the words, "heirs of the body," have been deemed to operate as words of purchase; as where the limitation was to A for life, and after his death, to the next heir male, and to the heirs male of the body of such next heir male, the devise to the heir was considered as a remainder to him by purchase; the word "heir" was in the singular number preceded by the word "next," and 

 [*434]  words of limitation were engrafted on it, which made the next heir the terminus or stock, by reference to whom the future succession was to be regulated. Archer's case, 1 Coke 66. Fearne 150. But if the words be heirs of the body, in the plural, in that case even words of limitation engrafted on them, if not establishing a new succession, inconsistent with the descent pointed out by the first words, will not convert them into words of purchase; as in Shelley's case, where the limitation [**9]  was to E for life, and after his decease to the use of the heirs male of the body of E lawfully begotten, and the heirs male of the body of such heirs male lawfully begotten. 1 Coke 96. But if the superadded words of limitation would limit an estate of a different nature from that which the ancestors would have taken if the preceding words were construed as words of limitation, such preceding words may be construed as words of purchase. In such a case the general effect, or natural and legal import of the word "heirs," would be altered, abridged or qualified, by such subsequent express words of limitation annexed to them. So where heirs of the body, are by words of reference or qualification, explained or restrained so as to mean the first and other sons.  Lisle vs. Gray, 2 Lev. 223. S. C. Sir T. Raym. 278.  Legate vs. Sewell, 1 P. Wms. 90. So where the persons to take cannot take as heirs by that description, by reason of a distributive direction, incompatible with a course of descent; as where gavel kind lands were devised to A and the heirs of her body lawfully to be begotten, as well males as females, and to their heirs and assigns forever,  [**10]  to be equally divided between them, share and share alike as tenants in common, and not as joint tenants. In this case it was held, that the words heirs of the body did not operate as words of limitation, because they were corrected or explained by the words which followed, and were irreconcilable with the notion of descent; and also because there were words of fee engrafted on the words of limitation, which showed that the estates given to the children, and not the estate of A, were to be the ground work of succession of heirs; or in other words that the children of A were to be the tirmini for the succession to take its course from. So where the limitation is directed to the presumptive heir of the person on whom the estate for life is limited. As where lands were devised to B for life, and after his death to the heirs male of the body of B, now living, and such other heirs male or female as he should thereafter happen to have of his body. B had issue, a son C, then living. In this case it was adjudged that B took only an estate for life, and that the remainder in tail vested immediately in his son C. In this case the words "heirs male" were qualified by the appended expressions [**11]  "now living," and C was clearly referred to, and designated under the character of presumptive heir. Burchet vs. Durdant, 2 Vent. 311.
Limitations in marriage articles, as well as executory trusts, are also considered as exceptions to the general 

 [*435]  rule. 1 Eq. Ca. Ab. 185, pl. 30.  Leonard vs. Earl of Sussex, 2 Vern. 526. Papillon vs. Voice, 2 P. Wms. 471. So where the estate limited to the ancestor is an equitable or trust estate, and that to his heirs a use executed or legal estate, they will not incorporate; and if the estate for life is a legal estate, and that limited to the heirs an equitable estate, it is presumed that effect would be the same.  1 Eq. Cas. Abr. 389. Shapland vs. Smith, 1 Brown Ch. 75. It would be needless at this time of day to inquire on what foundation the words "heirs" or "heirs of the body" were originally considered as words of limitation, where a preceding estate of freehold was given to the ancestor. If the rule was introduced to secure to the lord of the fee the fruits of wardship and marriage, which he had a right to claim from the heir, who came into the tenure [**12]  by descent, the rule must still prevail, although the abolition of the feudal tenures may have destroyed the reason of it. To disregard rules of interpretation, sanctioned by a succession of ages and by the decisions of the most enlightened judges, under pretence that the reason of the rule no longer exists, or that the rule itself is unreasonable, would not only prostrate the great land marks of property, but would introduce a latitude of construction boundless in its range, and pernicious in its consequences.
Having thus briefly examined what would have been the operation of this bequest, if the subject matter had been a frank tenant, (and in doing this we were necessarily led into an inquiry concerning the meaning and legal effect of the words "heirs," and "heirs of the body," when limited upon a preceding estate of freehold,) we shall now proceed to consider this bequest as applicable to chattel interests or leasehold property.
At one period of our law, if a term for years or chattel was bequeathed to one for life, and after his death to a third person, the ulterior limitation was considered as void, and the whole interest of the term or thing became vested in the first devisee;  [**13]  but in process of time, this doctrine was abandoned, and courts of justice, on grounds of general utility and public convenience sustained the superadded limitation as an executory devise.
This brings us to the question, Is there an executory devise in this case; or in other words, can the children of Catherine, the daughter, claim the interest in the term, on the ground that there is a limitation to them by way of executory devise after the death of their mother? And in making this investigation we shall first consider what would have been the true construction of this bequest if the words "heirs of the body" had been used instead of the word "heirs." When a correct result is attained by this view of the case, analogical reasoning, in the absence of express adjudications, may enable us to decide with some degree of certainty on the precise case presented by the will. In the case of Butterfield vs. Butterfield, 1 Ves. 133, 154, the testator devised that £  400 should be put out on good security 

 [*436]  for his son T, that he might have the interest of it for his life, and for the lawful heirs of his body; and if it should so happen that he should die [**14]  without heirs of his body, it should go to his youngest son J B. Lord Hardwicke decreed that the son T should take the whole in the thing devised. In Garth vs. Baldwin, 2 Ves. 646, personal property was limited to trustees to pay the profits to Edward Turner Garth for life, and afterwards to pay the same to the heirs of his body. The Lord Chancellor says the case is reduced to this, a gift of personal estate to one for life and the heirs of his body--That must vest the property in him whether the testator intended it or not.  Atkinson vs. Hutchinson, 3 P. Wms. 259. The Lord Chancellor declares that if a term of years be limited to A for life, remainder to the heirs of his body. A would take the whole interest. As where personal estate was given to L A P for life, and after her decease to the heirs male of her body lawfully begotten, and for want of such, with limitations over. The master of the rolls held that the whole interest vested in L A P. Daw vs. Chatham, 2 Fearne (347) 464. Interest of a sum of money given to A, and after his death to devolve to the heir of his body, with remainder over, vests the principal absolutely in A. Robinson  [**15]   vs. Fitzherbert, 2 Brown Ch. 127. Edward Webb, in consideration of marriage between his son Thomas, and Anne his then wife, and £  350 portion, did assign to a trustee the remainder of a term for 1000 years, upon trust, to permit the son to enjoy the same so long as he should live, and after their decease, to permit the heirs of the bodies of the said Thomas, the son, and Anne his wife, to be begotten. The wife died leaving issue; Thomas survived and sold the interest in the term; and it was held, that the whole interest vested in him, and that therefore he could legally convey the same.  Webb vs Webb, 1 P. Wms. 132. The case of Peacock vs. Spooner, 2 Vern. 43, is the only case to be found in the books that even seems to clash with the above authorities, and that case is distinguished from the foregoing cases on the principle that the limitations were contained in a marriage settlement; and in the case of Garth vs. Baldwin, 2 Ves. 646, the Lord Chancellor says, that it was determined in the House of Lords, but with a great variety of opinion among the judges, that it was a single case, and its authority [**16]  shaken by the case of Webb vs. Webb.
From the preceding authorities it evidently appears, that if a leasehold estate is limited to one for life, the remainder to the heirs of his body, the whole interest vests in the first taken, and that the words "for life" will not be sufficient to restrain his interest to a life estate. But if words of limitation are superadded to the words "heirs of the body," such additional limitation is considered as indicative of an intent to give only a life estate. Hockley vs. Mawbey 3 Brown Ch. 82. So, if the words "heirs of the body" are followed by words of partition or distribution, 

 [*437]  the estate for life shall not be enlarged, by the force of the expression "heirs of the body," but the words of partition will be construed as indicative of an intent to give a life estate to the first devisee. Jacobs vs. Amyatt, 4 Brown Ch. 542.
By the irresistible authority of those decisions Catherine, the daughter, must have taken the whole interest of the unexpired term, if the devise had been to her for life, and to the heirs of her body. But it has been contended, that the word heirs may operate as a word [**17]  of purchase, and that the court will so construe it to effectuate the intention of the testator. That the word heirs, in certain cases, may operate as a word of purchase, is too plain a proposition to be controverted. The doctrine of contingent remainders furnishes many instances of it. If an estate of freehold be limited to A, remainder to the heirs of B, it is a contingent remainder; and if B dies in the life-time of A leaving C his heir, C will take as a purchaser, and cannot take by descent, because the inheritance was never actually or potentially vested in his ancestor B. So if leasehold property is devised to A, remainder to the heirs of B, the representatives of B will, for the same reason, take as purchasers, because nothing was devised or given to B; and such is the principle of the decisions in Holloway vs. Holloway, 5 Ves. 399, and in Gwynn vs. Muddock, 14 Ves. 488, referred to in the argument by the plaintiff's counsel. So the words "heirs of the body," may operate as words of purchase; as if an estate for life is limited to A, remainder to the heirs of the body of B, if B dies during the life of A, leaving a child or a descendant [**18]  of a child, such child or descendant takes by purchase, and cannot take by descent, because his ancestor had no seizin of the fee or frank tenement. But if an estate is devised to a man and the heirs of his body, the word "heirs" is a word of limitation. In every case therefore the question whether the words "heirs" or "heirs of the body" are to operate as words of purchase or of limitation, must depend on the context and subject matter. In the cases of devises herein before referred to, the words "heirs of the body," were held to be words of limitation, and it might have been contended, with as much force of argument in that case as the present, that as the words "heirs of the body" did, in certain instances, operate as a designatio personarum, they should be so construed in each of those cases, and therefore the heirs of the body should take as purchasers by way of executory devise. But this argument would have been unavailing, because the court, in construing the effect of limitation in bequests of personal property in general, keep in view their legal sense and meaning as applied to frank tenement, and hence the observation of the Lord Chancellor, in the case of Knight vs.  [**19]   Ellis, 2 Brown Ch. 570. He says it must have occurred to the judges, who decided those cases, that under the idea of making the rules of decision as to leasehold 

 [*438]  estate analogous to those which are applied to estates of inheritance, the intention of the testator must be much oftener disappointed than carried into effect; and then there can be no wonder that the court should try to get out of the technical rule, by any means it can. We ask what technical rule is here meant? The context shows that he refers to technical rules governing the limitations of frank tenements, whether the same be the rules of interpretation, established in Shelley's case, or elsewhere. And it was in this sense I have understood the learned counsel for the defendant, when in his luminous and eloquent argument he contended that the doctrine in Shelley's case had been applied as a rule of construction to ascertain the effect of limitations in bequests of leasehold estate. It has been admitted by the plaintiff's counsel, and the position has been established by a variety of decisions, that if the bequest be limited in such words as would create an estate tail in real estate,  [**20]  if applied to it, such words would vest the absolute interest in chattels in the first legatee. If such is the effect of a devise of a chattel interest to a man for life, remainder to the heirs of his body, why should not the same result be produced by a bequest to a man for life and to his heirs generally? If the words "heirs of the body" (which naturally point to children and their descendants) are considered as words of limitation, and enlarge the estate of the first devisee to an absolute interest, why should not the word heirs, so comprehensive in its signification, give as great an interest? If a frank tenement is limited to a man for life, and the heirs of his body, he has a limited and contracted interest--an estate in fee tail; but if it is limited to a man for life, remainder to his heirs, he has an absolute and unfettered estate. Why should the legal effect of those different limitations be so completely inverted when applied to chattel interests? Upon what principle can it be, that the more enlarged expression shall convey the least interest? It is said, that by construing the word "heirs" to be a designatio personae, you fulfil the intention of the testator, evinced [**21]  by his giving a life estate to Catherine, his daughter, and thereby secure a provision for the grandchildren, for whom the testator was under a natural obligation to provide. Refer to the case of Butterfield and Butterfield, and it will be found that this consideration had no influence with the Lord Chancellor, when he decided that the son of the testator should have an absolute interest in the money, which had been devised by the grandfather to the heirs male of the son, after the death of the son. There the grandfather, it may be presumed, intended to provide for his grandchildren, under the restricted limitation of "heirs of the body" of the son; but this intention was not legally evinced, and therefore the father took all, to the exclusion of his children. So in the case of Webb and Webb, where the father, by a marriage settlement, in consideration of a portion brought by his son's wife, limited personal property to his son for life, then to the wife of 

 [*439]  the son for life, and after their death, to the heirs of the body of the son and his wife. The son survived the wife, and it was decreed that the whole property vested in him. Here the issue of the marriage [**22]  could claim no interest in the property settled, though the limitation was to the father and mother for life, and after their death to the heirs of their body. It might fairly be presumed that the children of the marriage were intended to be benefited by the marriage settlement, more especially as an estate for life only was limited to the father and mother, with remainder to the heirs of their bodies: Yet the Chancellor held, that the "heirs of their bodies" were words of limitation. If those cases are law, and their authority has not been called in question by the counsel for the plaintiff, how can the natural and legal sense of the word "heirs" in this case be restrained by the consideration of the supposed intention of the testator to provide for the children of Catherine, the daughter, founded on the circumstance of an estate for life being limited to her. The plaintiff's counsel have relied on the case of Clare vs. Clare, Cas. temp. Tal. 21, as decisive of the present case. There a devise to A of a term for life, and after his death to his issue, was held not to vest the whole interest in A, but that the issue of A should take after his death. Before this case can be [**23]  considered as conclusively deciding the present case, it is presumed that the counsel for the plaintiff must prove a position, which he assumed in the course of his argument, and that was, that the words "issue," "children" and "heirs," were convertible terms. Unless this position is true, the case of Clare and Clare cannot affect the present question. That the word "issue" in its natural, and often in its legal sense, means children, and is therefore a word of purchase, no one will question; but that the word "heirs" either in its natural or constructive sense, generally means issue or children, must be denied; that there are certain cases in which the word "heirs," is used in the same sense as children or issue is evident, but in all those cases, it receives its restricted meaning, by being associated with words of reference or qualification, which show that it was not intended to be used in its legal sense. The word "issue" in grants is exclusively a word of purchase. In testamentary dispositions of real estate, it may be either a word of purchase or limitation, and in bequests of personal property, it is a word of purchase, as appears from the case of Clare and Clare, and [**24]  the case of Knight and Ellis herein before referred to. But it is said that no decision can be found in which the word "heirs," in a case like the present, has been construed to be a word of limitation. This objection certainly is not entitled to weight, unless it can be shown that it has been adjudged that it is a word of purchase, or unless it can be proved by argument, founded on analogy and principle, that it ought to be so considered. The counsel on either side have not been able to refer to any decision 

 [*440]  on the precise point, and the court have endeavoured to prove, that all the analogies of the law are opposed to the construction contended for by the plaintiff. They therefore are of opinion, that the plaintiff is not entitled to recover, and refuse to give the opinion to the jury as prayed. The plaintiff excepted. Verdict and judgment for the defendant. From which judgment the plaintiff appealed to the Court of Appeals, but did not prosecute his appeal a.

a. Though no opinion in this case was given by the Court of Appeals, the Reporters have supposed its publication would be acceptable to the profession, because of the evident care with which the judgment of the court below was pronounced, and the well merited reputation of the Judge by whom it was delivered.

 [**25]  

5 of 22 DOCUMENTS 

CHAPPELL & STANSBURY VS. WYSHAM.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

4 H. & J. 560; 1819 Md. LEXIS 24 

December, 1819, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court. Assumpsit for money arising from the sale of goods delivered to be sold, &c. Plea, Non assumpsit.

At the trial the plaintiffs, (the appellants,) offered in evidence a bill of lading, to prove that on the 28th of August 1812, they shipped 100 barrels of flour on board the ship William Penn, whereof the defendant, (the appellee,) was master, from Baltimore to Lisbon, the dangers of the sea only excepted, and consigned to the defendant to be sold by him on account, and at the risk of the plaintiffs, they paying freight at the rate of five dollars per barrel, payable by agreement in Baltimore, with primage and average accustomed. Also the following endorsement on the bill of lading: "For the better security of the within flour a certificate, purporting that it is my property, has been furnished by Mr. Gill. This memorandum therefore is to prove against me or my heirs, assigns or administrators, that the property is actually and bona fide the property of those who appear in the within bill of lading, and that the aforesaid certificate is merely and only to be used in case of necessity, to claim in case of capture or seizure in a foreign port, inasmuch [**2]  as master's adventures are generally respected.

Ezekiel C. Wysham.

Baltimore, 28th August, 1812."

The ship sailed on the voyage, and in the course of it was captured by a British ship of war, and carried into Kingston, Jamaica, where admiralty proceedings were had against her and cargo. The defendant claimed the 100 barrels of flour as his private adventure, and they were restored to him. A certain Wilkinson and Gilpin, of Kingston, were appointed agents for the ship and cargo by the defendant, and they sold the flour in question for $ 1871 89, and applied the same to the disbursements of the ship, contrary to the wishes of the defendant. The defendant, on his return to Baltimore, received from James Biays, the owner of the ship, an account, in which there was a credit to the defendant of the said sum of $ 1871 89, and on which account a balance was due to himself. He made no objection on to this credit, or to any part of the account. The defendant then offered evidence to prove, that the ship was freighted from Biays by a certain William Wood, and a certain Sampayo, and that Wood and Sampayo had obtained a British licence for her; but gave no evidence to the jury to [**3]  shew that the plaintiffs had any concern in procuring the licence; but did give in evidence, by a competent witness, that one of the plaintiffs was a young man in the counting house of Biays; that he was frequently on board the ship while loading, and that he knew she was not armed; that Biays never told the plaintiffs that the ship had said licence, nor did the witness know that they were acquainted with the fact or not; but he thought that no person at that time would have made such a shipment without they believed that there was such a licence on board the ship. The defendant offered no other evidence to shew that the plaintiffs had any knowledge of the licence. The defendant then, upon the whole evidence given by the plaintiffs and defendant, moved the court to direct the jury, that if they believed from such evidence that the said shipment of flour was covered by a British licence, and that that was known to the plaintiffs, then they were not entitled to recover. And the Court, [Ward, A. J.] did so decide; and also decided, that if the jury believed that the ship sailed under a British licence, the plaintiffs were not entitled to recover, whether they knew of the licence or [**4]  not. The plaintiffs excepted. Verdict and judgment for the defendant, and the plaintiffs appealed.  

DISPOSITION:
JUDGMENT REVERSED, AND PROCEDENDO AWARDED.  

HEADNOTES:

In 1812, (during the war between the U S and G B) C and S shipped a parcel of flour on board of a vessel, on a voyage from Baltimore to Lisson, to be sold for them by W, the captain. The vessel was captured by a British ship of war, and carried to Jamaica, where the goods in question, the property of C and S, were restored to W as his private adventure, who obtained the money for which the goods were sold, and to recover which C and S brought an action of assumpsit against W To defeat the claim W offered to prove that the vessel was owned by B and freighted from him by W and S, who obtained a British license to protect the ship and cargo--Held, that as between the parties to an illegal transaction, no suit will lie by one against the other; and if the plaintiffs did know that the vessel was covered by a British licence, they would be so far considered parties to an illegal transaction, as to be incapable of sustaining this action; otherwise, if they had no knowledge of the fact.

The doctrine of constructive knowledge, on which prize courts have condemned the property of innocent claimants, is one of policy, and adopted for the purpose of preventing illicit trade, violation of allegiance, &c. But as between a principal and his agent, where the latter seeks to shelter himself behind his own illegal act, the same reason does not hold, and the law will not, on the principle of constructive notice, work injustice, by subjecting the principal to the consequences of an illicit transaction, although he had no participation in it, to enable the agent, the actual violator of the law, and entitled to no favour, to take advantage of his own wrong, and to defraud his employer.  

COUNSEL:
Winder, for the Appellants, cited The Hiram, 1 Wheat. 440, 446.

Murray, for the Appellee, cited Patton vs. Nicholson, 3 Wheat. 207. (notes). The Caledonian, 4 Wheat. 100. The Langdon Cheves, Ibid 103. The Hiram, 1 Wheat. 447, (note); and The Franklin, 6 Robinson, 129.  

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

OPINIONBY:
BUCHANAN; JOHNSON 

OPINION:

 [*561]  BUCHANAN, J. delivered the opinion of the Court. It is contended, on the part of the defendant, 1st. That the sailing under a British license was illegal, and would have subjected the property on board the ship William Penn to capture and to condemnation in a court of prize, whether the plaintiffs had actual knowledge of the license or not, on the principle of respondeat superior. 2d. That an action of assumpsit will not lie on an illegal transaction; and therefore that the plaintiffs are not entitled to recover in this suit.
It will not admit of denial, that the sailing under the license in question was illegal; and in the case of  [**5]  The Ship Hiram, 1 Wheaton's Rep. 440, referred to in the argument, it was ruled, that the knowledge of the agent affected the principals, though in reality they might have 

 [*562]  been ignorant of the fact that there was a license on board; on the ground that the knowledge of the agent was constructively their knowledge, and that such constructive knowledge precluded them from showing the want of actual notice. And acting on that principle, if this case was now for adjudication in a prize court, on a question between the captors and captured, the cargo would probably be condemned. But it is believed, that the considerations governing courts of prize, in raising such constructive knowledge for the purpose of condemnation, to the exclusion of proof of actual ignorance of the fact on the part of the claimant, do not apply to this case. It is not like the case of a claimant, and the government, or the captors, and does not involve the same principles. It is true that as between the parties to an illegal transaction no suit will lie by one against the other. And admitting that if the plaintiffs did know that the vessel was covered by a British license, they would be so far [**6]  considered parties to an illegal transaction, as to be thereby rendered incapable of sustaining this suit, on the principle of pari delicto, potior est conditio defendentis. Yet if they had no knowledge of the fact, they were not in delicto at all, and the maxim does not apply to them. They had a right to ship their flour to Lisbon, and to constitute the defendant their agent; there was no illegality in that transaction. The taking of the license was a separate and distinct thing, and if not known to the plaintiffs did not enter into the contract between the parties, or form any part of the consideration on which it was founded, but was wholly unconnected with it. And to that transaction, if they were in fact ignorant of it, the plaintiffs were not parties, and are unaffected by it--The only delictum attached to the defendant, supposing him to have had a concealed knowledge of the license on board. And it would be too much to say that he by his own illegal act, not known to the plaintiffs who ought to have been informed of it, could so taint an otherwise fair transaction, as to entitle him to retain the property entrusted to his care, and apply the proceeds to his [**7]  own use. The doctrine of constructive knowledge, on which prize courts have condemned the property of innocent claimants, is a creature of policy, and nurtured from necessity for the purpose of preventing illicit trade, violation of allegiance, &c. But in a case between a principal and his agent, in which the latter seeks to shelter himself behind his own illegal act, the same reason does not hold; and the law will not, on the principle of constructive notice, work injustice, by subjecting the principal to the consequences of an illicit transaction, whether he had any participation in it or not, to enable the agent, the actual violator of the law, and entitled to no favour, to take advantage of his own wrong, and to cheat his employer--Such a doctrine would lead to great abuses.
It is the opinion of this court, that the judge, who tried the cause, went too far in saying, that if the ship sailed 

 [*563]  under a British license the plaintiffs were not entitled to recover, whether they knew of the license or not; and therefore the judgment is reversed.
JOHNSON, J. It appears in this case that the plaintiffs below shipped a parcel of flour on board a vessel called the William  [**8]   Penn in the year 1812, on a voyage from Baltimore to Lisbon, to be sold by the defendant, the captain of the vessel, for the plaintiffs. The vessel was captured by a British ship of war, and carried to Jamaica, where the goods in question, the property of the plaintiffs, were restored to the defendant as his private adventure, who obtained the money for which the goods were sold; to recover which this suit was brought. To defeat the claim, the defendant offered to prove that the ship was owned by one Biays, and freighted from him by William Wood, and a certain Sampayo, who obtained a British license to protect the ship and cargo.
War existing at the time of this transaction between the United States and Great Britain, it was unlawful for the inhabitants of the United States to trade with, or under the protection of the enemy. The voyage, under the existing circumstances, being unlawful, on the part of the defendant, it is contended, that no cause of action can arise directly or indirectly which can be sustained in a court of justice.
Nothing is more clear than that where the plaintiff and defendant are equal violators of the laws of the [**9]  country, the latter must prevail in any suit between them involving the violated laws of their country, on the established maxim, that in pari delicto, potior est conditio defendentis. And it is evident, that if the fact of the license having been obtained was known to the plaintiffs, in fact, or by implication, they were incompetent to sustain an action either for the cargo itself, or the proceeds thereof. But as their criminality arises from the knowledge of the fact, immediately or constructively, if neither is brought home to them, they are competent to recover from their agent the money retained by him on the sale of the property. It would be extraordinary indeed, if the captain of a vessel, and consignee of the cargo, was competent to do an act against the laws of his country, without the knowledge or participation of his principal, which could free him from that responsibility imposed upon him prior to the commission of the illegal act by the captain himself. The maxim has no bearing on such a case; the plaintiffs being actually and constructively ignorant of the transaction, can never be said to be in pari delicto.
The defendant's counsel in the trial of the cause [**10]  contended for no such principle. The court was called on to instruct the jury, that if they believed from the evidence that the shipment of the flour, for the amount of which the suit was brought, was covered by a British license, and that known to the plaintiffs, then they could not recover. That direction ought to have been given; but the court erred 

 [*564]  in directing the jury that the plaintiffs were incompetent to recover, whether they knew of the license or not.
JUDGMENT REVERSED, AND PROCEDENDO AWARDED.  

6 of 22 DOCUMENTS 

THE MARINE BANK OF BALTIMORE VS. BIAYS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

4 H. & J. 338; 1818 Md. LEXIS 14 

June, 1818, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court. Assumpsit for money paid, laid out and expended; for money lent and advanced, and on an insimul computassent. In the writ of summons which issued, the defendants, (now appellants,) are named The President and Directors of the Marine Bank of Baltimore. To this writ they appeared and imparled, &c. In the declaration it is stated, "that whereas the said Marine Bank on," &c. and that the money was paid and lent, &c. at its special instance and request; and the defendants named the said Marine Bank, or the said Bank, throughout the declaration. In the other parts of the record, they are named as in the summons. The general issue was pleaded, that the said Marine Bank did not assume upon itself, &c. And at the trial the plaintiff, (the appellee,) proved, that he, being indebted to the Marine Bank of Baltimore, the defendants, for loans of money previously made to him upon the promissory notes of G. Stiles, endorsed by him the plaintiff, to the amount of $ 7900, and being the owner of 380 shares of the stock of the said bank, upon which he had made all payments previously required by the bank to the amount of $ 7600, did at the request of the defendants,  [**2]  on the 8th of February 1811, execute and deliver a power of attorney to H. Waters, the president of the bank, authorizing and empowering him, for him the plaintiff, and in his name, to assign and transfer the said 380 shares of stock, standing in his name on the books of the said bank. He also proved that Waters afterwards, on the 14th of February 1811, did in pursuance of this power of attorney, and agreeably to the by laws and rules of the bank, transfer on the books of the bank the 380 shares of the stock to himself, in trust for the defendants; it being understood, that the transfer was intended to secure the payment of the said loans, and interest due thereon, and that upon the payment thereof the said stock was to be transferred back to the plaintiff. He further proved, that the directors of the bank did, according to the act of assembly incorporating the stockholders thereof, and in conformity to the provisions of that law, call on the stockholders to pay an installment of $ 5 on each share of stock at the bank, on or before the 1st of April 1811, and that the plaintiff failed to make regular payment of the installment so called for; and that Waters did, on the 27th of March [**3]  1812, by the direction of the plaintiff, transfer the said shares to N. Stansbury, on which day the plaintiff did pay to the defendants the said sum of $ 7900, with all interest due thereon. He also proved that the bank declared two dividends after the 1st of April 1811, and before the 27th of March 1812. The defendants then moved the court to direct the jury, that if they believed this evidence, the plaintiff was not entitled to recover any dividends made by the bank after the 1st of April 1811, and before the 27th of March 1812, the same having been forfeited by reason of the nonpayment of the installment required to be paid. This direction the Court, [Bland, A. J.] refused to give, and the defendants excepted; and the verdict and judgment being against them, they appealed to this court.  

DISPOSITION:
JUDGMENT REVERSED.  

HEADNOTES:

In an action against an incorporated bank, the writ described the defendants by their corporate name of, The President and Directors of the Marine Bank of Baltimore. The declaration is against the said Marine Bank; the plea was, that the Marine Bank did not assume, and the verdict and judgment used the corporate name--Held, on objections made to the declaration, that it was sufficient.

J B being indebted to the M. Bank, for loans of money to the amount of 7900 dollars, and being the owner of 380 shares of stock in that bank, upon which all payments previously required by the bank had been made to the amount of $ 7600, did at the request of the bank empower H W, the president, to transfer the 380 shares, who made the transfer to himself, in trust for the bank, to secure the payment of the above $ 7900, and interest due thereon. The bank, agreeably to their charter, afterwards called on the stockholders to pay an installment of $ 5 on each share on stock by the 1st of April 1811, which installment J B failed to pay. H W on the 27th of March 1812, by direction of J B, transferred the 380 shares to N S, and J B then paid the bank the $ 7900 with all interest then due. The bank declared two dividends between the 1st of April 1811, and the 27th of March 1812 To recover the amount of these dividends J B brought an action of assumpsit against the bank--Held, that J B, by his neglect to pay the said installment of $ 5, forfeited his claim to the two dividends declared by the bank, and that he had no right to sustain the action.  

COUNSEL:
Martin (Attorney-General,) for the Appellants. 1. The bank was incorporated by the name of The President and Directors of the Marine Bank of Baltimore, and the suit is properly brought against them by their corporate name; but the declaration is against the said Marine Bank, which is not the corporate name of the defendants. The plea is, that the Marine Bank did not assume,  [**4]  and the verdict is, that the President and Directors, &c. did assume, and the judgment accordingly. There is no such corporation as the Marine Bank, and "the said Marine Bank" cannot mean The President and Directors of the Marine Bank of Baltimore. The making up the issue cannot aid the plaintiff, if the issue tendered was an improper one. Nor can the verdict cure the defect. There is, therefore, no declaration against the defendants. 2. It does not appear that any dividends were made of the stock in question. 3. The forfeiture of dividends was intended to secure the punctual payment, by the stockholders, of the instalments, as they were called for. The bank had no interest to pay up the instalment on the plaintiff's stock, because he was personally liable. The payment of the instalment was not necessary to keep the stock in existence; it was only intended to secure the future dividends. 4. The bank had no money belonging to the plaintiff out of which the instalment could have been paid. 5. These shares of stock were not entitled to dividends, because when the instalments were not paid, the law says no dividends shall be declared on them. 6. If the legal title to the shares was in [**5]  the bank, how could the plaintiff claim dividends? If the plaintiff was the owner of the stock for the purpose of receiving the dividends, he was the person who should have paid the instalment when the call was made.

Winder, Williams and R. Johnson, for the Appellee. With respect to the alleged defect in the declaration it is now too late, admitting it to exist, to take advantage of it. It should have been pleaded in abatement. 5 Com. Dig. (2 B. 2) 569. Mayor, &c. vs. Bolton, 1 Bos. & Pull. 40. The defendants are properly named in the summons which issued against them, they came voluntarily into court, and were declared against as the said Marine Bank, which is a part of their corporate name, and the word said, couples that part with the rest of the name. The declaration draws with it the writ, which it is supposed to recite. It is enough that the whole name is once expressed, it being afterwards as completely comprehended by the relative expression said, as if it were repeated over. It is the same as where in ordinary cases the surname is omitted and the Christian one only used. Sometimes only one of many christian names is used, and sometimes the relation of the party to the [**6]  suit is merely stated as defendant or plaintiff. 1 Chitty's Plead. 248. Conner vs. Conner, 2 Wils. 386. By pleading to the declaration, the defendant admits it to be good, as well as the writ. 5 Bac. Ab. tit. Pleas, &c. (A) 328. They also referred to 1 Kyd on Corporations, 283, 285, 286, 287, 288. But the defect, if any, is cured by the verdict. Harvey vs. Peake, 3 Burr. 1793. Palmer vs. Stavely, 1 Ld. Raym. 669.

The facts in the case are in favour of the plaintiff below. When the instalment was called for the plaintiff was not the legal holder of the stock, but the right was in the bank, who ought to have paid the instalment. Suppose all the stockholders had made default, yet dividends must have been made amongst them. Here the stock was held by the bank, and it could not be forfeited. The bank is considered as an ordinary mortgagee. When mortgagees are in possession of the mortgaged premises or articles, they are bound to pay taxes, keep them in essential repairs, and, if it be living property, to afford it nourishment. 5 Bac. Ab. tit. Mortgage, (C) 20, (F) 103, 107. Still more are they bound to do that which will prevent a forfeiture of ordinary property. And even if the expenses [**7]  incurred to preserve the property do not increase its value, justice and equity require they should be advanced, and the same may be charged to the mortgagors. Abbott on Shipping, 19, 20. Jackson vs. Vernon, 1 H. Blk. Rep. 114. Westerdall vs. Dale, 7 T. R. 308. Hodgson vs. Butts, 3 Cranch, 144, 2 Fonbl. 354. Newall vs. Wright, 3 Mass. Rep. 138. Here, however, the mortgaged article was enhanced in value exactly to the extent in which the advances would have been made. It increased the capital just so much; of course the property mortgaged remained of equal value to secure the mortgaged debt. If the stock was an adequate security when taken, it did not become less so by such an increase of the mortgaged debt, as the advances would have caused, since the mortgaged article was equally increased in value. It remained as it was when taken, sufficient to secure the payment of the debt and of the advance; and the interest also was more than guaranteed by the dividends on the advance, the dividends being more than 6 pr. cent.

This call of an instalment, which it is pretended was not paid by the plaintiff, and that thereby dividends were forfeited, was a forfeiture made by the defendants [**8]  themselves. They were the legal owners of the stock, and of course ought to have paid the instalment. The plaintiff had no right, and was clearly under no obligation to meddle in the matter. Could a mortgagee cause himself a forfeiture in his own behalf against the mortgagor? He certainly could not. 5 Bac. Ab. tit. Mortgage, (F) 103. Here the bank could not be deficient to itself. It is a mere omission to make the entries in their books. Such a clerical omission is not to cause important legal consequences. The plaintiff could not control those entries. It was extremely unjustifiable and immoral, and believed to be wholly illegal, that the bank should, by a trick, in omitting to make two entries in its books, not only cause such a loss to the mortgagor, but thereby gain the whole of that loss to themselves. Thus converting their own criminal and dishonest conduct into a profit to themselves, and producing a correspondent loss to their mortgagor. This action for money had and received, is an equitable action; and it is evident that the bank, by the forfeiture, received more than their mortgaged debt. It cannot be said that no dividends were made on the stock in question, for the bill [**9]  of exceptions admits that dividends were made. And it is also said the dividends were forfeited, which necessarily admits their having existed. The act of incorporation does not say there shall be no dividends, but only that such dividends shall not be paid over. 1810, ch. 66, s. 8. Suppose an instalment is called for on the 1st of May, and a dividend to be declared on the 15th of May, and there is a forfeiture, can it be said that the whole dividend is forfeited? No, it is not to be paid to the person making default. Suppose he pays on the 17th of May, then the dividend is to be calculated so as to omit the two days. What is done with the dividend during the forfeiture? Is it paid away to the rest of the stockholders?

Martin, (Attorney-General,) in reply. There is no doubt that a person sued by his right name, may be declared against by his christian or surname. But it it is denied that the defendants have either a christian or surname. There is no objections to the use of pronouns, but here the pronoun it has been used, and why so used is inconceivable. How can the said Marine Bank, by any construction mean The President and Directors of the Marine Bank of Baltimore? Can the [**10]  pronoun it relate to The President and Directors, &c.? The plea and issue thereon joined is, that the said Marine Bank did not assume, and the verdict is that The President and Directors, &c. did assume. If the plaintiff was divested of all interest, both legal and equitable in the stock, how can he make this demand? He had either transferred away all his interest, or he was bound to pay the instalment. The bank had no more interest than the plaintiff had. The object for calling for an instalment was to bring money into the bank; and the bank could make no entry on their books so as to comply with the call. The plaintiff had no funds in the bank to meet the call. It could not be complied with by him, or by any one for him, except by bringing the instalment into the bank. What is the instalment? It is part of the consideration money which the plaintiff owed for the stock. Unless the instalment was paid, nothing was yielded by the payment of the preceding instalments to benefit any one. There was a general power given by the plaintiff to Waters to transfer the stock, and he did transfer it to himself, in trust for the bank, without any thing to shew that it was for the benefit of the [**11]  plaintiff, or in trust for him. Nothing remained in the plaintiff to entitle him to any dividend; but if he was entitled to the dividends, he was bound to pay the instalment. Neither the plaintiff, nor the bank, had the legal title in the stock--it was in Waters, and no default is chargeable to the bank. The stock was transferred to Waters, in trust for the payment of the debt due from the plaintiff to the bank, and after such payment, it was a resulting trust for the plaintiff. Suppose the bank had paid the instalment, had they any security to compel the plaintiff to refund? They certainly had none. If this is admitted, then it is admitting that the plaintiff ought to have paid the instalment. The bank could not call upon the plaintiff, unless he was bound to pay. If a mortgagee pays money for the mortgagor, it is upon the principle that the mortgagor ought to have paid it, but if he pays when the mortgagor was not answerable, then he cannot call on the mortgagor for the money paid If a mortgagor owing a part of the purchase money for the land, mortgages it, the mortgagee is not bound to pay the debt. He may do so for the purpose of securing his own debt. A mortgagee is not bound [**12]  to comply with the mortgagor's engagements, if he does it, it is because he has his remedy over. What are the expenditures which a mortgagee in possession is obliged to incur? He is not obliged to lay out more money than is sufficient to keep the premises in necessary repairs. He is not bound to enhance the value of the premises. Here the bank was not bound to pay the instalment so as to enhance the value of the stock. The plaintiff was as much in possession of the stock after as he was before the transfer. It was no more than the executing a mortgage without changing the possession. Payment by the bank would have been increasing a fund to pay the plaintiff's debt. He knew he owed for the stock any instalment that might be called. Suppose the stock was only equal to the payment of the bank debt, and the bank had paid the instalment, and it had turned out that the dividend was only a small per cent. and the price of stock had fallen, it would be so much lost to the bank. It was a risk the bank did not choose to run. The plaintiff could receive no dividend but such as accrued after the payment was made good, by calculating from the time when the payment was made. All profit made upon [**13]  the stock of the bank is divided among the stockholders. If there is any forfeiture by not complying with calls for instalments, the profit on the stock forfeited goes into the general fund, and although the person who forfeits receives no dividend, yet that profit is divided among all the other stockholders who do comply with the calls of the bank. If the whole profits are not divided, (as it often happens that a surplus is reserved,) then it goes into the general fund, to be divided at a future day amongst all the stockholders who may have complied with the calls of the bank up to that day.  

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

OPINIONBY:
CHASE; JOHNSON 

OPINION:

 [*343]  CHASE, Ch, J. delivered the opinion of the court. After stating the case, he proceeded as follows. The court are of opinion, that the 380 shares of stock were deposited in the hands of the defendants below as a pledge to secure the payment of the loan made to the plaintiff, with interest, and that the defendants had no right to appropriate the pledge, or any part thereof, without the consent and by the direction of the plaintiff, to any use or purpose; and that the plaintiff [**14]  had no power of disposition of the shares until the loan, with interest, was satisfied, without the concurrence of the defendants, because thereby the security would have been diminished. That the defendants had no money in their hands, belonging to the plaintiff, to pay the installment, and were under no obligation to advance money for him, and thereby increase the debt due to the bank from him. And if the defendants considered the shares so pledged as amply sufficient to secure the debt, it was not compatible with their duty as trustees, for the stockholders to divert the funds of the bank from their ordinary and legal appropriation, to pay the installment due from the plaintiff, and thereby free him from the penalty he would have incurred by not complying with the call, which the interest of the bank had rendered necessary. And such conduct in the defendants would have made that provision of the law nugatory as to the plaintiff, which was intended to secure punctuality in the payment of installments, and the interest of the other stockholders would have been diminished, by such improper interference, to the amount of the dividends on the said stock, which became a part of the common [**15]  funds of the bank, and the defendants would have been justly chargeable with partiality in such application of the funds.
If the sufficiency of the pledge had been doubtful, prudence and sound discretion would have dictated the propriety 

 [*344]  of the payment by the bank to render the debt secure.
The court are of opinion, that the plaintiff, by his refusal or neglect to pay the installment of $ 5 on each share of stock thus pledged, forfeited his claim to the two dividends declared by the defendants, and that he had no right to sustain the action in this case.
The court do not consider that the objections raised to the declaration are sustainable.
JOHNSON, J. having stated the facts, thus proceeded--Whether or not the court below erred in the opinion given by them, is now for the consideration of this court.
The action for money had and received will be sustained if the plaintiff has an equitable right to the money; and the case must rest and depend on the same principles that would govern the decision if the cause was now before a court of equity.
Before I proceed to the examination of those principles that ought, in my opinion, to govern the cause, let us take a view [**16]  of the relative situation of the parties.
The bank, aware of the call it had made on the stockholders for payments, receive the stock in question. Over it the bank acquired the legal interest, backed with an equitable right to the extent of the debt due. The money paid on that stock, even without the additional responsibility of the plaintiff, as the endorser of the notes, together with that of the drawer, was an ample, and more than ample security for the debt. The sum paid on the stock was only $ 300 less than the debt itself, and the stock itself, as it then stood, worth more than the sum due. The dividends on the stock in its then situation, would have exceeded the interest on the debt more than $ 130--the one limited to six, and the other never dividing less than eight per centum.
When those parties were thus situated, was it equitable or just for the bank to receive the stock, with an intention to demand $ 1900 more to be paid thereon, and in case of failure to claim all the profits such stock would otherwise have drawn? Is it consistent with equity or justice, and in a court of chancery could such a demand be set up under any pretext or denomination whatever?  [**17]   I cannot for a moment believe that in that court, whose power it is to relieve from, and not enforce forfeitures, that such a question would bear a moment's consideration.
The object of the clause in the act of incorporation, on which the plaintiff's demand is resisted, most unquestionably was to draw more money into the bank to meet its engagements, or to further its operations; and no one could question its right to detain, from the delinquent stockholders, the dividends, and either keep them in the vaults of the bank, or divide them immediately amongst the punctual stockholders, as they conceived most advantageous for the institution, when there was no other connection than that of a mere naked stockholder. But it will not follow 

 [*345]  that the same consequences are to result when the connection of the bank with the stock is more intimate. If the bank had obtained the equitable as well as legal right to the stock in question, then, as to the bank, and as to all who were interested in the institution, this stock would have drawn the same interest, whether the installments called for were paid or not; for as the bank, as such, has no funds, and only uses those [**18]  of the stockholders, if, money had been paid on those shares, it must have been the money of the stockholders remaining in the bank--a surplus fund undivided; and, therefore, when the dividends were struck, the stockholders would receive the same sum, either as their interest in the stock thus increased, and less out of the surplus fund, or more out of that fund, and less on account of the stock. A payment, therefore, on stock owned by the bank, could add nothing to its funds--it would bring no money into the bank. The simple operation would be to give a different destination to that which was already there.
But it is urged that here the bank had not an absolute interest in this stock; certainly such is the fact; for if it had an absolute indefeasible interest, then this suit never could have been conceived, as the plaintiff would have had no part or lot in the matter. But the bank had the legal, and to a large extent, the equitable interest also; and yet we are told, and I may say only told, that the bank, the mortgagee of this stock, was not bound to do those acts, if any were to be done, to keep the stock (if I may so express myself,) in full existence, and not suffer it, as to [**19]  the interest of the mortgagor, to be completely prostrated. Now let it for a moment, for argument sake, be admitted, that the bank was not bound to make the payments; yet it cannot be controverted by any one the least conversant with the principles by which a court of chancery is governed, that if ex gratia, the payments had been made, the dividends in question must have been accounted for to the mortgagor, either by applying them to sink the debt, or by a payment over, that being discharged. But we have already seen that such a payment could not have added to or diminished in the slightest degree the interest of the institution. By the act of incorporation the stock is to be transferred on the books--those books, and those alone, will then disclose the stockholders. At the time when the money in question was called to be paid, the bank, by its president, was the holder. Now let it be yielded, that the officers of the bank would have received the payment if the plaintiff had offered the money, yet, if received, it must have been received as if paid by the president, and added to the increase of the stock. The name, or the agency of the plaintiff, could not have appeared in [**20]  the transaction. If then the payment must appear (if it had been made,) to have been made by the president of the bank, is it, on principles of equity and justice, certain that he 

 [*346]  was bound to have caused such entries to be made as would have kept the stock in full power?
It has already been established to my comprehension, that an actual payment of money out of the surplus funds, or an entry made on the books, purporting that the payment was made, could not have affected the interest of those concerned in the institution. It remains to be considered, whether, if the one or the other was necessary to keep the stock in active operation, the defendants were not bound so to have done? And if they were, then it must be conceded, they have no right to retain the money in consequence of their own neglect or fault.
The able counsel who conducts this case on the part of the bank, as is usual with him, when he cannot bring books to support the principles he contends for, concedes those brought to bear against him, but draws out of his own fertile imagination nice distinctions, just suited to cover his case.
It is unquestionably established that a mortgagee in possession, is bound [**21]  to do those acts, to keep the premises fit for a beneficial use; and that if he makes no profits, from neglecting to do so, he must account as if he had. 5 Bac. Ab. tit. Mortgage, (F) 104. It is also clear that he is bound to perform all covenants running with the thing mortgaged; that he is bound to do all acts that are necessary to prevent the mortgaged premises from being forfeited. Pow. on Mort. 264, 266.
But it is said those principles have no bearing on the case. To my mind each and every of them sanctions the plaintiff's right to recover the money in question.
If the mortgagee is compelled to repair, to keep the mortgaged property fit for use, which can only be done by incurring expense, a fortiori, (if it be necessary,) were the defendants bound to make the payment, or entries; for neither the one nor the other could in the slightest degree have diminished the interest or dividends of the stockholders. If the mortgagee is bound to comply with the covenants running with the mortgaged premises, then, as the demand in question was bottomed on the covenant that the stock should cease to divide in case the demand was not met, which runs with the stock, the [**22]  mortgagee was bound to have met it, to have avoided such forfeiture.
But it is contended that the demand was not founded on a covenant connected with the stock itself, but that the sums called for were part of the original purchase money. The reverse is the case; for if the demand was founded on a debt due from the plaintiff at the time he became a stockholder, then, it would follow, that the noncompliance with the call, would subject him to a suit for the money; and yet, it is apprehended, that none who question the decision of the court below, will go to the extent that he might have been sued for the money. This remark answers also the argument on the part of the appellants, that a subsequent mortgagee is not bound, before he can resort to the 

 [*347]  mortgaged premises, to discharge the prior mortgage, supposing such an argument to have the least applicability to the case before the court. But it seems to me to have no bearing; for, in no instance could the subsequent mortgagee resort to the property until such prior mortgage was discharged, or unless it was adequate to both, and then no contest could exist.
That the claim for a forfeiture on the noncompliance with the call,  [**23]  is evidently founded on a covenant running with the stock, appears from its resting on the terms of the law under which the stock is taken--each party agreeing to those terms. If such a clause had not been inserted in the law, then no demand could have been made, producing such an effect. The principle, that the mortgagee in possession is bound to do all acts to prevent a forfeiture, powerfully bears on the present case; for, if the mortgagee of leasehold property is bound to pay the rent to avoid a forfeiture to a stranger, which requires the advance of money on his part, how much more strong is the case here against the mortgagee, where no money need have been advanced, and when he himself claims such forfeiture?
But it is urged that the case before the court is not to be governed by those principles that apply to mortgagees in possession. For it is said, if the mere act of executing a mortgage makes a mortgagee in possession, then all mortgagees are mortgagees in possession. But as a distinction exists between them, therefore the merely executing a mortgage can have no such effect. No person can suppose the mortgage itself constitutes a mortgagee in possession. But the case [**24]  before the court never could have existed if the bank had not been in possession, possessing such property as the property in question, in the way, and only way, it could be possessed--receiving all the profits immediately as they became due.
But it has been observed, that the stock was not transferred to the bank, but to H. Waters, and that supposing if it had been transferred to the bank, on the facts in the cause, the dividends could not have been withheld; yet that circumstance varies the case. It does not appear to me in any manner to alter the question; for as he was the president and agent of the bank, it must be affected by his conduct, and I know of no other way of transferring to the bank, except through the instrumentality of the president thereof.
Against the plaintiff's demand it is also urged that the defendants are not liable, because the dividends in question have been distributed amongst the stockholders. This ground is as defenceless, in my opinion, as those already considered. If tenable in this case, it must in all cases prevent any money from being received, no matter how unjustly it was detained, provided they have paid it away. By the charter the bank is [**25]  to be sued in the name of the president and directors--the stockholders are not liable to be sued as such for the conduct of the bank, and they can 

 [*348]  only be come at through the president and directors. If by the injustice of the president and directors, or by the misconception of the rights of the stockholders, they pay away to one or more, more money than he or they were entitled to receive, the president and directors are liable to the person injured, whose money was thus unjustly paid away, whether the same proceeded from the purest or most unworthy motives; and their remedy is against the stockholders--a remedy in their own hands; for if compelled to pay, as in this case, there will remain, to the extent of the recovery, less to be distributed.
JUDGMENT REVERSED.  

7 of 22 DOCUMENTS 

DUKEHART'S Ex'rs. VS. THE STATE use of JACOBS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

4 H. & J. 506; 1819 Md. LEXIS 12 

June, 1819, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court. Debt upon a guardian's bond, executed on the 5th of November 1803 to the state, by William C. Cockran, with Thomas Dewet, and the testator of the defendants, (now appellants,) as his sureties, conditioned that Cockran, as guardian of Rachel, John, Sarah, Michael, Charlotte and Juliet Jacobs, should faithfully account, &c. in the usual form. The defendants pleaded that Cockran paid to John Jacobs, (the person for whose use the action was brought,) after he attained the age of 21 years, to wit, on, &c. the whole sum of money which the said J. Jacobs was entitled to have and receive from the said Cockran, as guardian aforesaid, and did in all respects perform the duty of guardian to the said J. Jacobs according to law, &c. They also pleaded plene administravit. The replication to the first plea, protesting that Cockran did faithfully account, &c. in the words of the condition of the bond, assigned for breach that J. Jacobs, mentioned in the condition of the bond, before the impetration of the writ original in this cause, to wit, on, &c. attained the age of 21 years, and that upon a final settlement of the estate of the said J. Jacobs, at the time of [**2]  his arrival at the age of 21 years, there was due to him from Cockran, as guardian of the said J. Jacobs, the sum of $ 600; nevertheless Cockran, although thereunto requested, had not paid and delivered over the said sum of, &c. to the said J. Jacobs; and so the said state saith, that Cockran had not performed the duty of guardian to the said J. Jacobs. All which, &c. General replication was replied to the second plea, and issue joined. To the replication to the first plea the defendants rejoined that Cockran did faithfully account, &c. in the words of the bond. And that upon a final settlement of the said estate, at the time of the arrival of the said J. Jacobs at the age of 21 years, the sum of $ 600 was not due to him by the said Cockran, nor was any part thereof due by Cockran, as guardian to the said J. Jacobs, in manner and form, &c. To this rejoinder there was the general surrejoinder and an issue. At the trial of the cause the defendants, in order to support the issue joined to the plea of plene administravit, offered in evidence the final settlement of their accounts with the orphans court of Baltimore county, showing, that as executors of their testator they had overpaid [**3]  the estate $ 801 03. And also the order of the orphans court directing them as executors, &c. to give notice to the creditors of the deceased to exhibit their claims and debts. They further gave in evidence, that publication was made by them in the public newspapers in the city of Baltimore, in conformity with the said order; and that the whole of the assets, as returned by them to the orphans court, was duly paid and distributed among the creditors whose claims had been exhibited to them. And it did not appear from any evidence, that the defendants had any knowledge of the existence of the claim of J. Jacobs, or that the same had in any way been notified to them before the distribution of the assets as above mentioned. The plaintiff, in order to disprove the plea so pleaded by the defendants, offered in evidence a lease duly executed, acknowledged and recorded, from P. Diffenderffer to the defendants' testator, dated the 28th of December 1803, for a lot of ground in the city of Baltimore, and therein described, at the annual rent of $ 480 for 99 years renewable forever, with the usual clause of a right to re-enter on non-payment of the rent. But the defendants objected to the reading [**4]  in evidence this lease for the purposes for which it was offered, as the same was not returned in the inventory exhibited by them to the orphans court of the personal estate of the testator, nor was there any notice given by the plaintiff that it was intended to introduce evidence to show fraud, or want of truth in the said inventory. This objection the Court, [Bland, A. J.] overruled, and permitted the lease to be read to the jury. The defendants excepted; and the verdict and judgment being for the plaintiff, they appealed to this court.  

DISPOSITION:
AFFIRMED.  

HEADNOTES:

To disprove the plea of plene administravit, pleaded by an executor defendant, the plaintiff offered in evidence a lease duly executed to the testator for a lot of ground for 99 years, at annual rent--Held, that it might be read in evidence, although it had not been returned in the inventory to the Orphans' Court, and although no notice had been given to the defendant that it was intended to be offered in evidence, to show a fraud or want of truth in the inventory.  

COUNSEL:
Williams and R. Johnson, for the Appellants. 1. The lease not being returned in the inventory was not evidence. 2. Without other proof it was not evidence. They referred to the act of 1798, ch. 101, sub ch. 6, s. 6, 13, and sub ch. 8, s. 15. Buckley vs. Pirk, 1 Salk. 72; and Toller 141.

Winder, for the Appellee.  

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

OPINION:

 [*507]  JUDGMENT AFFIRMED.  

8 of 22 DOCUMENTS 

MACTIER VS. WIRGMAN, et al.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

4 H. & J. 568; 1819 Md. LEXIS 28 

December, 1819, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court. Assumpsit for money had and received, lent and advanced, laid out and expended, and on an insimul computassent. Pleas, the general issue. At the trial the plaintiff, (now appellant,) offered in evidence a charter party of affreightment under seal, dated the 25th of April 1810, executed between the plaintiff, together with several other shippers, and the defendants, (the appellees,) owners of the ship or vessel called the William Wilson, whereof P. Wirgman, one of the defendants, was master, of the burden of, &c. lying in the port of Baltimore. Covenant by the owners, that the ship should be tight, &c. and that the master would receive and take, and the freighters should load, and put on board the said ship, a cargo of lawful and permitted goods, &c. and being so laden, the master should proceed with the ship from the port of Baltimore, north about, for the port of Sylt. "And if on arrival there it can be ascertained that the ports of Hamburg and Bremen are open to the admission of American vessels, that the said master shall forthwith proceed to whichsoever the said ports the supercargo and himself shall think most for the interest of the freighters.  [**2]  But should the said ports of Hamburg and Bremen continue closed, then the said cargo shall be landed at Sylt, if permitted; and in case of refusal to permit the same to be landed at Sylt, that then the said master shall proceed therewith to such permitted port in the North Sea, or the Baltic, as he, and the supercargo, shall order and direct. And should the Baltic be also closed against the admission of American vessels, in such case the said master shall proceed with the said cargo to such other port as he and the said supercargo may in their judgment think most proper. And that on the arrival of the said ship at the port of delivery, the said master shall and will make a right and true discharge of the said cargo to the said supercargo, or to such other agent, factor or consignee, of the freighters, as they may direct, agreeably to bills of lading to be signed for the same, and so end and finish the said intended voyage; the dangers of the seas, restraint of rulers, and princes, fire, pirates and enemies, only, excepted." The freighters covenanted to pay freight agreeably to the bill of lading; "provided the said cargo be discharged at a port in the North Sea; but if delivered at [**3]  any port in the Baltic, not higher than Kiel or Colberg, then the said freighters covenant, &c. to pay unto the owners an advance of 10 p. c. on the amount of the freight money stipulated by the said bills of lading. If higher that Kiel or Colberg, and not higher than Konigsburg, a like advance of 15 p. c. and if higher than Konigsburg a like advance of 20 p. c. And should the Baltic be shut, such further advance on said freight as shall be settled by arbitration, together with 5 p. c. primage, on whichsoever sums shall be earned as aforesaid; which said sums shall be deemed and taken in full of freight, primage, &c. and that the said freight, money and primage, shall be paid immediately on the delivery of the said cargo," &c. The plaintiff also offered in evidence a bill of lading for that part of the cargo shipped by the plaintiff on board the ship William Wilson, (the ship named in the charter party, dated the 8th of May 1810,) P. Wirgman, one of the defendants, master, bound from the port of Baltimore for Sylt, and a permitted port in the North Sea or Baltic, mentioning the goods laden, and that the goods were shipped "for account and risk of the shipper, a citizen of the U. S.  [**4]  of America, and resident merchant of Baltimore, to be delivered in the like good order and well conditioned, at the aforesaid permitted port, (the dangers of the seas only excepted,) unto Messrs. David Parish & Co. Hamburg, or to their assigns, he or they paying freight for the said goods at the rate of four pounds sterling per ton for logwood, and Nicaragua wood, nine shillings sterling pr. hundred weight for sugar, and eight shillings sterling per hundred pounds for coffee, with five per cent primage, with primage and average accustomed." He also offered in evidence the following agreement, dated the 14th of May 1810, made and entered into by the defendants at the plaintiff's request, and by them addressed and delivered to the plaintiff, "we hereby agree and acknowledge that the sundry goods shipped by you on board the ship William Wilson, Peter Wirgman, master, are to be landed in a permitted port on the continent of Europe, (meaning that they are not to be landed on the island of Sylt,) before the freight is carned. But should the whole of the continent be shut, the freight, with an addition, (as arbitrators may determine,) will be earned should the property be landed in England [**5]  agreeable to the custom of the country." He also offered in evidence copies of the three following letters of instruction from him, the plaintiff, to Messrs. Parish & Co. of Hamburg, dated at Baltimore on the 8th, 9th. and 14th of May 1810. 1. "Through the recommendation of our mutual good friends Messrs. Robert Gilmor & Sons, I have taken the liberty of enclosing you invoice and bill of lading for sugar, coffee and dye woods, of the first quality, shipped on board the ship William Wilson, Peter Wirgman, master, to your address, bound for Sylt, and a permitted port in the North Sea or Baltic, the call at Sylt is merely with a view to get information if your port is open to admit her cargo; if so, it is my wish to dispose of my property immediately on its arrival, to the best possible advantage, provided you do not see a prospect of better markets, in which case you will be guided by your own judgment. However, I would prefer a sale if a small profit could be obtained. If a sale is effected at your port, I wish you to remit, as soon as possible after the arrival of the goods, to my friends Messrs. John Heathcote & Co. London, as large an advance as you can conveniently make, and when [**6]  sales are closed, the nett proceeds, advising the same. It is to be observed the ship is not discharged from her freight until the cargo is landed in a port on the continent of Europe. Should your port not admit the entry of her cargo, in that case you will address my property to your friends in a port where it will be admitted, and you judge it will turn out most to my advantage. On account of the unsettled state of affairs, and captain Wirgman being a particular friend of mine, should the property be denied an entry at your port, and the ship proceed to where you have no friends to confide in, in that case you will consult with captain Wirgman for the safety of my property, giving him such instructions as you may judge most for my interest, when you will order remittances, as before directed, if exchange is in favour, if not, let the nett proceeds be shipped me by the first opportunity in canvass, Russia duck, and brown sheeting, a proportionable quantity of each. The reason why I have been so particular in the bills of lading respecting the logwood, is that I was informed that part had been sawed and split, in order to make stowage, though the former owner of the ship denies it.  [**7]  However, if this is not the case, the number of pieces and weight will be found correct, as per bill of lading. Hoping this venture may arrive to a good market, and that you will exert yourself for my interest, I remain," &c. 2. "In case a remittance in bills should not prove favorable, I have thought proper to inclose a list of articles that would answer, provided they were of good qualities, purchased at the stipulated prices, and shipped immediately direct to this port at moderate freight, but still would prefer the bills. List of burlaps or halblacken in bales of 100 ells, 5 bales," &c. "or a proportionable quantity of the foregoing articles to the amount of the funds in hand, in case of shipment." 3. "Since writing to you the shippers generally on board the William Wilson have deemed it expedient to enter into a stipulation or charter party with the owners, in case your port should not be open to receive her cargo. As this instrument of writing seems to be called for in your ports, I have thought proper to sign the same, though it is in no case to invalidate the bill of lading, further than to allow the additional freights stipulated, in case she should proceed further than the [**8]  two first ports, as you will observe by the enclosed letter from the owners. Be particular in forwarding certificates of landing." The originals of these letters were put into the possession of Peter Wirgman, previous to his leaving the port of Baltimore on the voyage aforesaid, and were afterwards opened by the crew of a privateer that captured the ship William Wilson, and were restored to Peter Wirgman on the acquittal of the ship by the prize court of Christiansand. The plaintiff further offered in evidence the following letter of instructions, written by the plaintiff, also dated the 8th of May 1810, and addressed and delivered to Peter Wirgman, one of the defendants, and who was, as before stated, master of the ship. "On account of the unsettled state of affairs on the continent of Europe, I have thought proper to request my friends Messrs. Parish & Co. of Hamburg, in the event of the cargo of the William Wilson being denied entry at their port, to consult with you on the further destination of the ship, and the disposal of my interest on board. In case they have no friend at the port she may proceed for, you will please to take charge of it, and advise with them what is best [**9]  to be done for my interest. On your arrival off Sylt, should the situation of affairs be such as to prevent you from communicating with Messrs. Parish & Co. in that case you will have to proceed with the cargo where you judge it will be most advantageous for all concerned, when I shall consider my part as entirely under your charge, referring you for government to my letter of instructions to Messrs. Parish & Co. which in that case you will open. You will, no doubt, have occasion to get assistance in sales; be particular in applying to a house of the first respectability, taking care to get the business closed if possible before your departure. Any attention paid to the delivery of my interest will be thankfully acknowledged, and shall satisfy you for any trouble or expense you may be at for the safety and security of the same. The reason why I have been so particular in the bills of lading respecting the logwood, is that I was informed part had been sawed and split in order to make stowage, which was contrary to agreement, though the former owner, Mr. Lovering, denies it. However, if this should not be the case, the number of pieces and weight will be found correct as pr bill of lading.  [**10]  Satisfied that your best exertions will be used to promote my interest, and wish you a safe and prosperous voyage." The plaintiff further offered in evidence the five following letters from P. Wirgman to Messrs. Parish & Co. respectively dated the 13th of July, 14th of September, the 14th of October, and the 8th and 10th of November 1810, 1. Dated at Hitteroe, the 13th of July 1810. "It is with real concern I apprise you of the capture of the ship Wm. Wilson on the 29th June, (by a Danish privateer,) on board of which, as you doubtless are informed, I have the care of property shipped by Alexander Mactier, Esqr. therefore I take the liberty of soliciting, as early as possible, your advice, and any information you conceive will conduce to his interest, which will very much oblige," &c. 2. Dated at Flekkefiord, the 14th of September 1810. "I had this pleasure, 13th July, apprising you of the unfortunate detention of ship Wm. Wilson and cargo, considerable part of which is to your address, as no doubt you are advised by duplicate. I then craved your advice respecting our future destination, but a more extensive knowledge of prize cases induces me to believe was I in possession of it,  [**11]  it would be of no advantage, as to be Americans, however accurate their papers, and uncontaminated their neutrality, is sufficient cause, under frivolous pretences to force us through the court of appeals, and by that means ruin our speculations. In 3 or 4 weeks we expect the promulgation of our sentence at Christiansand, and should I find it necessary I shall return home and collect uncontrovertible proofs of the facts we have already stated." 3. Dated at Christiansand, the 14th of October 1810. "I yesterday had the pleasure of receiving your much esteemed favour of the 2d inst. and regret my absence from the ship prevents my detailing the particular quantity of the articles to your address, which consists chiefly of sugar, coffee and logwood, amount to about $ 30,000, shipped by Mr. Alexander Mactier of Baltimore, who, as well as our house, have letters to you from our mutual friends Robert Gilmor & Sons. I can only account for your not receiving invoices and bills of lading, by the bearers of the duplicates being equally unfortunate with ourselves, and their letters consequently detained in the prize courts, as several hundred we brought are in that situation, many of which contain [**12]  large remittances. I am now in daily expectation of our sentence, of which you may depend upon being immediately advised." 4. Dated at Christiansand, the 8th of November 1810. "I had this pleasure 14th ultimo, in conformity to which I have the satisfaction of announcing on the 5th inst. my ship's papers were returned in pursuance to the sentence of the prize court, from which no appeal was entered. The situation of the property still causes me much anxiety, and the numerous dangers that envelope us have induced the determination of discharging the cargo in Flekkefiord, where the ship at present lays, for which purpose we have petitioned the Prince Regent, and from our arrival being prior to these recent regulations, anticipate a favorable result." 5. Dated at Christiansand, on the 10th of November 1810. "I had this pleasure the 8th inst. since which I am favoured with your esteemed communication of 30th ultimo, and cannot but express my gratitude for your provisions for our case, through your friends Messrs. Duntzfelt & Co. which I feel a persuasion would have been of essential service, but an happy I shall have no occasion to avail myself of it, as the captors very prudently decline [**13]  to enter an appeal. I regret your letter does not contain any favorable information upon which we might be induced to alter our determination of unloading in Flekkefiord, which I intend commencing on Wednesday next." The plaintiff also offered in evidence two letters from Messrs. Parish & Co. to P. Wirgman, dated at Fickkefiord, Hamburg, on 2d and 30th of October 1801; that of the 2d of October, acknowledged the receipt of his letter of the 14th ultimo, referring to another of the 13th of July, which they had not received; and stating that they had never received any information respecting the consignment by the William Wilson, except from their mutual friends Messrs. Widow, John Langs, & Son, Bremen, who merely mentioned that part of the cargo was to their (the Parish's) consignment. That they should have been very happy to render their services useful to him during his unfortunate detention in Norway, through the medium of their agents, in advising with him respecting his future proceedings after sentence had been pronounced at Christiansand, and as very few escaped condemnation at the prize courts in Norway, they must suppose his case would not prove an exception, and the appeal [**14]  carried to the high court of admiralty in Copenhagen, where his presence would be necessary. They requested him to inform them who were the shippers of the consignment to their address, and to forward any letters he might have for them, with any other information that might be useful. That if he proceeded to Copenhagen, their friends Messrs. Duntzfelt & Co. would cheerfully render him every service in their power for that purpose. That all the Danish ports being shut against the admission of vessels loaded with colonial produce, it became no easy matter to point out a proper destination for the William Wilson, after she should be liberated; but on this subject they had time enough to correspond after they should be informed by him of the goods he had on hand. That several of their friends, however, proceeded from Gottenburg to Carlsham, there to unload their cargoes, from whence, during the winter, goods might be transported by degrees to the opposite coast, by making arrangements for their admission at the different Prussian ports. That their partner, J. Parish, Jr. was then in Sweden, and would be happy to afford him his assistance and advice &c. The letter of the 30th of October [**15]  1810, acknowledged the receipt of his letter of the 14th inst, in answer to theirs of the 2d, and that they observed the goods he had to their consignment consisted of sugar, coffee and logwood, amounting to $ 30,000, shipped by Mr. A. Mactier, who, as well as his house, had letters to them from their mutual friends Messrs. R. Gilmor & Sons; that these letters, they observed, were detained in the prize court. That until then they were without any direct intelligence of this shipment. They were anxiously waiting to hear the result of his sentence, but apprehended it would not prove favorable; in this event he would be under the necessity of proceeding towards Copenhagen, to attend to the appeal in the high court of admiralty at Copenhagen, where their friends, Messrs. Duntzfelt & Co. would use every exertion in his favour. That he would be informed by the public papers of the late French and Danish decrees respecting calomel produce--of the heavy duties laid on both there and in Holstein. That under existing circumstances it would become a difficult matter to point out a proper port of discharge, so many changes taking place, and that if any further alterations should take place, they [**16]  should keep him informed. The plaintiff further offered in evidence, that the ship William Wilson sailed on the voyage mentioned in the charter party, with the goods and merchandize mentioned in the bill of lading; and that while on her voyage, and before her arrival at the island of Sylt, she was captured on the 29th of June in the said year, by a Danish privateer, and carried to the port of Hitteroe, in Norway, and subjected to admiralty proceedings as prize by the captors. That the admiralty court finally decreed the restoration of the ship and cargo on the 18th of November following, and caused her on that day to be delivered up to P. Wirgman. He further offered in evidence certain depositions, taken under commissions issued in this cause at his instance, to Salem in Massachusetts, and to Philadelphia in Pennsylvania, for the purpose of proving in what manner certain supercargoes and others conducted themselves, who sailed in vessels on voyages to the north of Europe, during the years 1809, 1810 and 1811, and the state of the different ports, &c. during these years. He further offered in evidence, that the ports of Denmark, Sweden, Prussia and Russia, in the Baltic, were at that [**17]  time open to American vessels, and the ship William Wilson could with safety have proceeded to any of the ports of Denmark, Sweden, Prussia and Russia, and delivered and sold her cargo to advantage; and that other American vessels did, about that time, proceed up the Baltic, and deliver and sell their cargoes; but that P. Wirgman, instead of proceeding thither, sailed from Norway directly to the port of Hull in England, and there delivered the cargo of the said ship to Messrs. Borthus & Boster, resident merchants of London, whom he selected and chose for that purpose. That E. Thomman, the supercargo, who was placed on board the said ship by the other shippers, but who had no control over the goods and merchandize of the plaintiff, was left in Norway when the ship sailed as aforesaid. He further offered in evidence, that the defendants received from Messrs. Borthus & Boster, to whom the cargo was delivered as aforesaid, from the proceeds of that part thereof which belonged to the plaintiff, the sum of $ 2196 61, the freight stipulated in the bill of lading, for the transportation of the plaintiff's goods and merchandize; and also the further sum of $ 2450 36, as additional freight,  [**18]  for landing the same at Hull in England; and also the sum of $ 180 88 for demurrage. He further gave in evidence, that P. Wirgman, after leaving the port of Flekkefiord, in Norway, did not proceed to the island of Sylt, where he might have gone, the same being an open and free port, and that the cargo would have been permitted to be there landed. He also offered in evidence, that in the understanding of the merchants of Baltimore, when the contract of charter was executed, a permitted port in the North Sea was understood to apply to a port on the continent of Europe only. The defendants then gave in evidence, that P. Wirgman and E. Thomman applied to the Danish government for liberty to unlade and dispose of the cargo of the William Wilson, after restoration, at the port of Flekkefiord, in Norway, where she lay, which application was depending until about the 1st of December 1810, when it was refused, and P. Wirgman was ordered by the Danish government to leave Denmark. The only evidence offered of that fact was the evidence of H. Campbell, one of the crew of the ship, that the pilot who navigated the ship from Flekkefiord, stated, on coming on board of the vessel, in the presence [**19]  and hearing of the crew, and in answer to a question by one of them, that he was directed to take the vessel to sea without delay, but did not state by whom or by what authority such direction was given. The defendants further offered evidence to prove, that the cargo of the plaintiff was colonial produce, and that an American vessel, laden with colonial produce, could not proceed to any part of the Baltic, nor to any port of the continental powers in the North Sea, without imminent risk of having the ship and cargo seized and confiscated under the orders and decrees of the several continental powers, for the purpose of enforcing, what was called, the continental system of the Emperor of France. That it was extremely hazardous, if not impracticable, at that season of the year, to prosecute a voyage from Flekkefiord up the Baltic, from the severity of the season and climate, and that no prudent navigator would voluntarily have attempted it; and that French and Danish privateers were very numerous in that sea, and captured all American vessels that they fell in with; and that condemnation followed all French captures. They further gave in evidence, that P. Wirgman, under these circumstances,  [**20]  believed that the only prudent and safe course for him to pursue, was to proceed to Hull in England, a port in the North Sea, where he accordingly did proceed, and safely delivered the cargo as stated in the plaintiff's evidence. They further offered in evidence, that E. Thomman concurred and assented to the ship's proceeding to Hull under the circumstances aforesaid; and that although P. Wirgman applied for advice and instructions, (as appears by his letters to Parish & Co. set out in the plaintiff's evidence,) to Parish & Co. he obtained from them no other advice or directions than what is contained in the letters from Parish & Co. to P. Wirgman, also given in evidence by the plaintiff. They further offered in evidence, that the Island Sylt, is a part of Holstein, within the dominions of Denmark, and that the orders and decrees of the Danish government, in execution of the continental system, applied as well to Sylt as any other part of the Danish dominions, and that an American vessel with colonial produce on board, was as liable to seizure at Sylt as in any other port in Denmark. They further offered in evidence that the port of Hull is a port in the North Sea; and that there is [**21]  no custom of merchants, or usage of trade among the merchants of Baltimore, which confines the expression of "a port in the North Sea." to a port on the continent of Europe. The defendants then moved the court to direct the jury, that P. Wirgman, by the charter party, the memorandum, and the letters of instructions from the plaintiff to him, was the agent of the plaintiff, with discretionary powers; and if the jury should be of opinion from the evidence that P. Wirgman, in the exercise of an honest discretion, believed, either from the inclemency of the season and climate, or from the political state of the continent of Europe, or from dangers of capture by privateers, it was unsafe or inexpedient to attempt to land the cargo in any of the ports of the continent, or the North Sea or the Baltic, that then he was justified in proceeding to England, and was entitled to the additional freight stipulated in the agreement of the 14th of May 1810. That at all events, whatever the jury might believe in these respects, that Hull was a port for delivery of the cargo both in the charter party and the said agreement, and therefore that the plaintiff was not entitled to recover. That if P. Wirgman,  [**22]  in his character of supercargo, or agent for the plaintiff, relative to the management of the plaintiff's cargo, caused the goods to be delivered at Hull, then the defendants were entitled to freight, and the plaintiff could not recover. Upon this prayer the Court, [Ward, A. J.] gave the following direction to the jury. The facts in this case are so material for the solution of the contract of the parties, which like all other contracts must be determined according to its legal intent, that it is rather to be regretted that any question should be withdrawn from the jury, which it appears to the court, is the competent tribunal to adjudge all the law arising from the proof in the cause. As a prayer has been made it must be given, refused or modified. The court have carefully examined and compared the agreement, instructions and correspondence. A charter party, bearing date the 25th of April 1810, has been given in evidence, and whatever ambiguity it contains is removed by a subsequent agreement dated on the 10th of May following. By the latter it is stipulated that the goods are to be landed in a permitted port, in a particular sea, on the continent of Europe, before the freight is [**23]  earned; meaning that they are not to be landed on the island of Sylt; and should the continent be shut, the freight, with an addition, shall be earned, should the property be delivered in England. From this subsequent agreement it is evident that Hull was not a port within the contemplation of the charter party. How far the testimony may go to show that the ports of the continent were shut, is a matter of fact not within the province of the court, but for the jury to determine. If the jury should be of opinion that the ports were closed, then P. Wirgman was justified, as the agent of the plaintiff, in delivering the cargo in England. The letter from the plaintiff to Parish & Co. directed them to consult with him as his agent. Wirgman asked their advice, but received none, and thereby, in the opinion of the court, Wirgman was placed in the same situation as if he had been cut off from all communication with them; in which event he was expressly authorized to act according to discretion. The court cannot lay their hand on any letter of the plaintiff's which goes to tie Wirgman down to the instructions of Parish & Co. or to preclude him absolutely from acting without them, on the contrary [**24]  it is manifest that the plaintiff considered P. Wirgman an agent, in whom he had vested discretionary powers. It follows, therefore, if the jury should believe that the ports of the continent were closed within the meaning of the articles of agreement, the owners of the vessel were entitled to freight; or if the jury should believe from the state of the ports, intended to be included by the agreement, that it was inexpedient to attempt the landing of the cargo on the continent, P. Wirgman was authorized to proceed to England, and land his cargo. The vessel consequently earned freight. To this direction the plaintiff excepted; and the verdict and judgment being against him he appealed to this court.  

DISPOSITION:
JUDGMENT REVERSED, AND PROCEDENDO AWARDED.  

HEADNOTES:

In assumpsit to recover a sum of money retained by the defendants, on account of freight, out of the proceeds of that part of the cargo which was the property of the plaintiff--Held, that the contract between the parties, as collected from the charter party, the bill of lading, and a subsequent agreement, was that the goods shipped by the plaintiff should not be landed on the island of Sylt, but at some permitted port on the continent of Europe, before any freight should be earned; but in the event of the whole of the ports on the continent being shut, then, and not otherwise, the defendants should be entitled to freight on the goods being landed in England, with a stipulated addition. That by the term 'shut,' was meant an occlusion, by the municipal regulation of the country. That the ship owners had a right to make any other contract they pleased with the plaintiff, varying or annulling the charter party, in relation to his part of the cargo. That whether it would or would not have been expedient to attempt the landing of the cargo on the continent was not a matter for the jury. That the only question for the jury was, whether the whole of the ports on the continent of Europe, were, by municipal regulations, closed against the admission of the goods of the plaintiff? If they were, the vessel earned freight by going to England; if on the contrary any of them were open to such goods, the defendant had no right, under the stipulations in the agreement, to charge freight on landing them in England; and the plaintiff was entitled to recover any sum of money retained by the defendants on that account, notwithstanding the distracted state of Europe might have rendered it hazardous to seek such open ports. 

COUNSEL:
Harper and Scott, for the Appellant; and by

Pinkney and Winder, for the Appellees.  

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

OPINIONBY:
BUCHANAN 

OPINION:

 [*577]  BUCHANAN, J. delivered the opinion of the court. It has been urged in argument on the part of the defendants, that the plaintiff, by his letter of instructions to Peter Wirgman of the 8th of May 1810, constituted him his supercargo or agent, and [**25]  that he could not in that character prejudice the ship owners by any violation of his instructions, notwithstanding he was himself a part owner of the vessel; but was liable, if at all, only in his individual capacity. That question does not belong to the case, and is not necessary to be inquired into. The suit was brought, not for damages for a violation of instructions by Peter Wirgman as supercargo, but to recover a sum of money retained by the defendants, on account of freight, out of the proceeds of that part of the cargo which was the property of the plaintiff. The only question is, whether freight was earned or not? And that question lies within a narrow compass. The contract between the parties to this suit, to be collected from the charter party, the bill of lading, and the agreement of the 14th of May 1810 is, that the goods shipped by the plaintiff shall not be landed on the Island of Sylt, but at some permitted port on the continent of Europe, before any freight shall be earned; but in the event of the whole of the ports on the continent being shut, then, and not otherwise, the defendants shall be entitled to freight on the goods being landed in England [**26]  , with a stipulated addition. By the term "shut," as here used, is meant an occlusion, by the municipal regulations of the country; and unless in that sense of the term all the ports of the continent of Europe were closed, the vessel could not earn freight by going to England, unless the plaintiff by some act of his has made 

 [*578]  himself liable. And it is said that he has so made himself liable; that the letter of instructions to Peter Wirgman, of the 8th of May 1810, vested in him, as agent, a discretion to do whatever in his opinion would be most to the interest of the plaintiff, in the event of his being prevented by the situation of affairs in Europe, from communicating with the Messrs. Parish & Co. and entitled the ship owners to freight, on the cargo being landed, in the honest exercise of that discretion, at Hull in England, which it is contended, is a port in the North Sea, within the meaning of the charter party and bill of lading. That paper being of anterior date, must be considered as revoked by the agreement of the 14th of May 1810, so far as it may contain any thing inconsistent with that instrument; but on an attentive examination [**27]  it will be found to give no such discretion. Peter Wirgman by it is referred for his government to a letter of the same date from the plaintiff to the Messrs. Parish & Co. in which they are expressly instructed, that "the ship is not discharged from her freight until the cargo is landed in a port on the continent of Europe," thus tying down the ship-owners, in relation to the freight to be earned, to a delivery of the goods at some port on the continent. These two letters, taken together, and not that to Peter Wirgman alone, must be understood as furnishing his instructions. But it is argued, in relation to the letter to the Messrs. Parish & Co. so far as it respects a delivery of the goods at a port on the continent, that the plaintiff had no power, by any instructions either to the Parishs or to his supercargo, to deprive the defendants of rights acquired under the charter party, or to control the general voyage, in which other shippers were concerned. The answer to that is, that the ship-owners had a right to make any other contract they pleased with the plaintiff, varying or annulling the charter party, in relation to his part of the cargo. They did enter [**28]  into a subsequent separate agreement with him, to which we must look for the rights of the parties. In that instrument the stipulation that no freight shall be earned by landing the cargo in England, unless all the ports on the continent of Europe should be shut, is just as explicit as the agreement not to land the goods on the Island of Sylt. It may therefore as well be said, that the defendants would have been entitled to freight on the goods being landed at Sylt, as in England; and it has not been contended that freight could have been earned by landing them at Sylt, though by the terms of the charter party they might eventually have been landed at that port. Hence it is not material to this case, what the true meaning of the charter party is, or what would have been the rights of the parties under that instrument as it originally stood. But admitting, for a moment, that the letter of the 8th of May to Peter Wirgman did give him the eventual discretion contended for, whether the contingency happened or not, on which the discretion was to arise, was a question for the consideration of the jury, and perhaps the judge stepped 

 [*579]  aside in saying [**29]  that it did. Wirgman was bound to seek a communication with the Messrs. Parish & Co. and to obey their instructions, and was not tied down to a communication from Sylt only, which is merely mentioned as a convenient point of intercourse; and to show that he was not prevented from communicating with them, seven letters that passed between them were offered in evidence, two of which were from the Parishs to him. In their first letter of the 2d of October 1810, they request information concerning the cargo consigned to them, and by whom, and suggest difficulties respecting the future destination of the vessel, in the event of her being liberated, but say there will be time enough to correspond on that subject, after being informed of the cargo on hand; at the same time telling him what course had been pursued by several of their friends. And in their letter of the 30th of the same month, they instruct him, in the event of condemnation, to proceed to Copenhagen to prosecute an appeal; inform him of recent French and Danish decrees respecting colonial produce, and of the heavy duties imposed in Hamburg and Holstein, and speak of the difficulty at that [**30]  time of pointing out a proper port of discharge, but promise to keep him informed of the state of affairs. To their avoiding to give positive directions touching the future destination of the ship, before she was liberated, no objection can be taken. But what was the course pursued by Peter Wirgman? In his letter of the 8th of November he advised the Messrs. Parish & Co. that the vessel had been released on the 5th, and that it was his determination to discharge the cargo in Fiekkefiord, and without waiting for instructions; and as if to prevent any, in his last letter of the 10th of the same month, only two days later, he informed them that it was his intention to commence unloading on the Wednesday following; and afterwards, without consulting them on the subject, or giving any intimation of his intention, sailed for Hull in England, where he landed the cargo. It was his duty, after advising the Parishs of the liberation of the vessel, to wait at least a reasonable time, for their directions; and if he either declined, or by any improper act of his, prevented their further interference, he thereby violated his instructions, and removed the only ground on which [**31]  the claim of discretion could rest. The judgment of the county court cannot in any view of the subject be sustained. Whether it would or would not have been expedient to attempt the landing of the cargo on the continent, was not a matter to be inquired of by the jury. The only question properly before them was, whether the whole of the ports on the continent of Europe, were by municipal regulations closed against the admission of the goods of the plaintiff which were on board the ship William Wilson? If they were, the vessel earned freight by going to England; if on the contrary any of them were open to such goods, the defendants had no right, under the stipulations in the agreement, to charge freight on landing them in England, and the plaintiff 

 [*580]  is entitled to recover any sum of money retained by them on that account, notwithstanding the distracted state of Europe might have rendered it hazardous to seek such open ports.
JUDGMENT REVERSED, AND PROCEDENDO AWARDED.  

9 of 22 DOCUMENTS 

WOODS, et al. VS. FULTON and STARCK.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

4 H. & J. 329; 1818 Md. LEXIS 10 

June, 1818, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from the Court of Chancery. The bill in this case was filed by the complainants, (now appellees,) against the administrator and representatives of J. M. Dennison, to obtain a decree for the sale of a house and lot in the city of Baltimore, alleged to have been mortgaged to them by J. M. Dennison, in his life-time, to satisfy a debt due from Dennison and his partner, Thomas L. Savin The substance of the case, as disclosed by the record, is this--Dennison & Savin were partners in trade in Baltimore; as were also the complainants. They agreed mutually to endorse for each other, to obtain discounts from the banks; and at the same time agreed mutually to secure each other, and for this purpose Dennison made a mortgage of the premises in question to the complainants; and Fulton, one of the complainants, made a mortgage of a house and lot he held in Baltimore to Dennison & Savin. These transactions took place about the 31st of July 1811. Each party reciprocally endorsed for the other to a considerable extent; and finally, upon the death of Dennison, which happened in August 1813, the complainants took up the paper they had endorsed and loaned to Dennison & Savin, to the amount of [**2]  $ 4462 75. William Woods & Westly Woods, were also partners in trade, under the firm of William Woods & Son, and had also loaned and endorsed for Dennison & Savin to a sum exceeding $ 3000, to secure which Dennison had agreed to mortgage the aforesaid house and lot, and had given directions to prepare a mortgage to that effect a short time before his death, but he was taken ill and died before he could execute it. Neither the mortgage from Dennison to the complainants nor from Fulton to Dennison & Savin, were recorded. It was alleged by the complainants that this was the result of forgetfulness and inattention, and proceeded from no fraudulent intention. It was also alleged by the defendants, that it was mutually agreed, at the time of executing the mortgages, that they should not record them. Dennison died intestate, leaving a daughter, Sarah, the wife of T L. Savin, and a son named Marcus. Woods was the administrator of Dennison, and contended that the complainants were only entitled to come in pari passu with the other creditors. The mortgage premises were leasehold.

KILTY, Chancellor, (July term 1876.) decreed, that the premises mentioned in the mortgage from Dennison to the [**3]  complainants should be sold to satisfy the debt due to them. From that decree the defendants appealed to this court.  

DISPOSITION:
DECREE AFFIRMED.  

HEADNOTES:

D in 1811, executed a mortgage of certain lease-hold property to F, to secure him as an endorser of certain promissory notes, and which F, on the death of D, was compelled to pay. The mortgage was not recorded, from neglect, and not from any fraudulent intention. F filed a bill in chancery against the administrator and representatives of D, to obtain a decree for a sale of the mortgaged premises to satisfy the amount paid by F -- Decreed, that the property be sold, &c. On appeal--Held, that the question, whether the mortgage was fraudulent with reference to the creditors of D, did not arise, as the answers did not state the insufficiency of the estate of D to satisfy his creditors, and to that point there was no proof--And quere as to the true construction of the eleventh section of the act of 1785, ch. 72; and how far the defendant could call to his and the provisions of that act in a case where the complainant does not seek to record his mortgage, but claims relief under that branch of equitable jurisdiction, which enforces contracts made bona fide, and for a valuable consideration? 

COUNSEL:
Winder, for the Appellants. The mortgage was not recorded, and the bill prayed for a sale of the mortgaged premises. The chancellor, without directing the mortgage to be recorded, decreed a sale of the property to pay the debt, to secure the payment of which it was executed. The only ground on which the complainants could come into a court of chancery was under the act of 1785, ch. 72, s. 11, to have the mortgage deed recorded. A fraud was committed on the creditors of Dennison, and of Dennison & Savin, by withholding the mortgage from record.

Martin, (Attorney General,) and Pinkney, for the Appellees. The only question is, whether, though the deed was not recorded, the complainants have not such an equitable lien on the property against the heirs of Dennison as to be entitled to have it applied to the payment of their debt? By the general law of the court of chancery, previously to the year 1785, this mortgage would be considered a contract in equity which the court could decree upon on equitable grounds, as a particular lien. The court [**4]  would have viewed it as a mortgage of a particular debtor, and liable to every equity to which the mortgagor would be liable. Here the mortgage not being recorded, was not owing to any fraudulent intention. It was not incumbent on the complainants to prove that there was no fraud, because none was alleged in the answers. Is the mortgage not on a meritorious consideration, and the peculiar favourite of the court of chancery? But it is said the complainants have lost the effect of their mortgage in a court of equity, because it was not recorded. The mortgage not being recorded is not valid in point of law. How is the defect to be supplied, but by the court of chancery, which will give efficacy to it, and can do so by considering it as a contract. Every mortgage is a contract, even without covenants, but here there are covenants. It is a mere agreement, and as such a court of equity can carry it into effect. The act of 1785 does not interfere with the general powers of the court of chancery, or to any exclusive equity which it possessed before. It only restricts the particular case legislated upon by the act. To show what was the powers of the court of chancery in a case similar to the [**5]  present, and the nature of special liens, they referred to Pow. on Mortg. 460, 469. Burn vs. Burn, 3 Ves. 573. Notice to general creditors was not necessary. Pow. on Mortg. 585, 586. There is no allegation in the bill or answers that Dennison & Savin were insolvent, or that Dennison was insolvent. The creditors are not, therefore, made parties, and cannot be affected by this decree. The bill and prayer in it are that the particular piece of property mortgaged should be made liable to pay the particular debt.

Winder, in reply, referred to 1 Madd. Chan. 329. Lloyd vs. Collett, 4 Bro. Ch. Rep. 469; and S. C. 1 Atk. 12, (note.) 

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

OPINIONBY:
DORSEY 

OPINION:

 [*331]  DORSEY, J. delivered the opinion of the court. It has been contended on the part of the appellants, that the decree of the chancellor ought to be reversed, as the mortgage from Dennison to the appellees was fraudulent, with reference to the creditors of Dennison, and Dennison & Savin; and the eleventh section of the act of 1785, ch. 72, has been relied on to establish this position. As the answers do not state the insufficiency of the estate [**6]  of Dennison to satisfy his creditors, or the insolvency of the firm of Dennison & Savin, (and to those points there is no proof in the cause,) the question of fraud, with reference to creditors, does not arise in the cause. This view of the case renders it unnecessary for the court to decide on the true construction of the statute referred to, or to give any opinion on the question, how far the defendant could call to his aid the provisions of the said statute, in a case where the complainant does not seek to record his mortgage, but claims relief under that branch of equitable jurisdiction, which enforces contracts made bona fide, and for a valuable consideration.
DECREE AFFIRMED.  

10 of 22 DOCUMENTS 

BURT VS. GWINN.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

4 H. & J. 507; 1819 Md. LEXIS 13 

June, 1819, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court. Assumpsit brought by the endorsee, (now appellant,) against the surviving drawer, (the appellee,) of a promissory note. The declaration contained the usual counts, and the general issue was pleaded.

1. At the trial the plaintiff gave in evidence the following promissory note:

"Baltimore, 6th March, 1813.

Dollars 4750. Sixty days after date we promise to pay to John Wallis, Junr. or order, negotiable at the Bank of Maryland, forty-seven hundred and fifty dollars and     cents, for value received.

Chs. Gwinn, & Co."

Endorsed--"Pay the contents to Andrew Burt, or order,

John Wallis, Junr."

This note, it was admitted, was made and signed by Charles Gwinn, the defendant, on behalf of himself and William Smith, trading under the firm of Charles Gwinn and Company, and that the defendant had survived Smith, who died before the institution of this suit; and that the name of John Wallis, junior, endorsed thereon, was in the proper hand-writing of said Wallis, and that the words "Pay the contents to Andrew Burt, or order," were witted above the name of John Wallis, junior, on the back of the note, at the trial of this [**2]  cause. The defendant then gave in evidence that the note was made and signed by Charles Gwinn and Company, as aforesaid, on the 6th of May 1813, and not on the 6th of March 1813, as the same purports to have been signed; and that the latter date was inserted in the note by mistake. That the note was given and signed at the instance and request of a certain Joshua Dorsey, to whom it was delivered on the 6th of May 1813, and upon the express stipulation and agreement that Dorsey would on the same day deliver into the hands of Charles Gwinn and Company, 300 bags of coffee, as a security for the payment of the said note at maturity, and to indemnify them against all loss on account thereof. He further gave in evidence that the 300 bags of coffee were not delivered to Gwinn and Company on the 6th of May 1813, or at any time since, and that they did not then, or at any time since, receive any consideration for the note. He also gave in evidence, that the note was drawn in blank, and was delivered to Joshua Dorsey, without the name of any payee being inserted therein, and that Dorsey, on the next day after the issuing of the note, applied to John Wallis, Jr. for a loan of money, but could [**3]  not obtain it; that Dorsey, however, in answer to the said application, received a letter from Wallis, stating that he, Wallis, would discount any good paper upon which Dorsey might wish to raise money. That Wallis had sometimes offered notes at different banks for the purpose of having them discounted for the use of Dorsey, and in such instances where the bank did discount them, Wallis paid over the net proceeds to Dorsey, only deducting the bank discount. That the business of Dorsey brought him and Wallis together almost every day upon money negotiations. That in consequence of Wallis's letter, stating that he could discount any good notes, Dorsey called on him with the note of Charles Gwinn & Co. when he found him very much indisposed, and out of humour, and disposed to reproach Dorsey for disturbing him. Dorsey informed him of his necessities, when after some hesitation he filled a check for $ 4000 on the Mechanic's Bank, and counted out $ 600 in bank notes, with which Dorsey retired. That no conversation, or contract or agreement whatever took place at the time of the transaction as to any discount which was to be deducted, legal or illegal, but that the foregoing statement is [**4]  a complete detail of what did pass. That he Dorsey, the witness by whom these facts were proved, did not recollect any conversation that passed as to the note being offered for discount at the Marine Bank, but that he would not be understood to swear positively that such a conversation did not pass, as his situation at that time was such, and the haste in which the whole transaction took place, as prevented him from charging his memory so as to swear positively as to any fact further than is above stated. That the sum of $ 150, which was retained by Wallis, as Dorsey understood and presumed, was about the sum intended to be charged for discount upon said note, which sum was left in the hands of Wallis as discount or interest by Dorsey. That there was no contract or agreement whatever between Wallis & Dorsey for the return of the $ 150 to Dorsey; that Dorsey at the time was not in debt to Wallis; that Wallis had often discounted notes for Dorsey, sometimes at legal, and sometimes at usurious interest. That had not his circumstances terminated disastrously soon after this transaction, he would have called upon Wallis to know upon what account he retained the $ 150, and would have required [**5]  a settlement as to that item. That although no notes were actually due by Dorsey to Wallis, at the time of this transaction, that Wallis held notes for, and upon which Dorsey was responsible, (which, however were not at maturity,) to a considerable amount of money, and particularly upon a premium insurance note which might have been, and he believes was issued by Wallis, for a part of which Dorsey was liable, although the note was not due. That the whole sum of money due by Dorsey at the time of his misfortunes, to Wallis, was due upon mercantile transactions between them prior to his failure; and that Dorsey is now indebted to Wallis in a large amount. That he did not communicate to Wallis, nor did Wallis inform him, or state his impression, that the $ 150 should be retained as a premium for lending the money; that his impression that it was an illegal premium was derived from the facts herein before stated, and that there was no contract between him and Wallis, that he Wallis should keep the $ 150 for discounting the said note. The defendant also offered evidence to prove, that when the said note become due he was called upon for payment thereof by a notary public, under the direction [**6]  of the Union Bank of Maryland, and that when the said note was so put in the hands of the notary, and when the same became due, and payment thereof was demanded as aforesaid from him, neither the name of Wallis as payee, not the name of any other person, was inserted in the body of the note, but that remained in blank, and was endorsed with the name of Wallis, and no other person. That when the note was put in the hands of the notary public by the bank for protest, the notary called at the competing house of Wallis, who was sick, and not there, but that he saw the clerk of Wallis, and informed him that the note had laid over at bank, and that he came to give notice of its non-payment by the drawers, and that it would be protested; that the clerk informed him that Wallis had left express directions that it should be protested. That the note came to his hands through the runner of the bank, who usually carried notes to the notary, and whose duty it was to carry the notes. That on the day on which he was on his way to the bank to return the note, he called on Wallis at his lodgings, and told him that the note was protested; that the only expression made by Wallis, in answer to the fact [**7]  of the protest, was an inquiry by him (which appeared to be made with some degree of surprise,) why it was protested--that he did not want it protested. That the said note was protested in the manner as appears in the notarial protest produced, which the defendant offered in evidence, viz. That the notary on the 8th of May 1813, "exhibited the said original promissory note unto one of the partners of Charles Gwinn & Co. (the makers of the same,) and demanded payment of the contents thereof, the time limited therein for payment having elapsed. Whereupon the said partner answered, that said note would not be paid, and required the following reasons to be inserted: First, this note for $ 4750 is not due for 60 days to come. It was issued on the 6th of May, the day before yesterday, and which day it was to be dated. Secondly, the coffee for which this note was given in part is not delivered. And lastly, the holder was informed of this circumstance, and that the note would be corrected and settled the moment the merchandize was in hand, and until then will not be paid, all of which John Wallis was then advised of, and regular vouchers in the hands of Charles Gwinn." That at the time the [**8]  note was delivered to the notary for protest, there was no appearance of any pencil mark in the name of any person upon the back of the note. The defendant further gave in evidence by Ralph Higginbothom, (Cashier of The Union Bank of Maryland,) that according to the established usage and custom of banks in the city of Baltimore, and of the Union Bank, the last endorser on a promissory note, deposited in bank for collection, is considered as the holder and owner thereof, and the person for whose use and benefit the same is to be collected, and to whose credit the same is carried when paid. The plaintiff then gave in evidence by the same witness, that the name of Andrew Burt, the plaintiff, was at the time, and before the note became due, endorsed in pencil on the back of the same; that although it is not the usual practice of the bank to admit endorsements in pencil, yet it is frequently done in cases considered as cash transactions, which the witness considers the present; that if the note had been paid by the defendant, the money would have been paid over by the bank to the plaintiff, whom the bank, according to the common usage in such transactions as the present, considered the [**9]  holder and proprietor of the note, and to whom alone it would have been paid; that this transaction was not a regular bank transaction, or one appearing on the face of the books of the bank, but was a private cash transaction of Burt with Wallis. The plaintiff further gave in evidence, (by the witness by whom the defendant proved that the said note was written and delivered on the sixth day of May,) that the inserting therein the sixth day of March was done through mistake, and that when Dorsey applied to Wallis, and obtained from him the said sum of $ 4600, Wallis was lying very sick; that he complained much of being disturbed by the application of Dorsey; that there was no agreement made between Dorsey and Wallis, that Wallis should receive or retain any larger sum than legal interest, nor any conversation upon that subject. That the transaction took place in haste in consequence of the illness of Wallis. That when the said note was put into the bank for collection, it was endorsed with a pencil with the name of the plaintiff, and was the property of the plaintiff, and was by him put into the bank for collection; and that the day on which the note became due the defendant called [**10]  at the Union Bank of Maryland, of which Ralph Higginbothom was cashier, and desired to see the note; that Higginbothom handed him the note; that the defendant said that there was a mistake in the date of it, and that if the note had been properly dated, he the defendant could have had no objection to pay it; that Higginbothom advised him to lodge the amount of the note in bank, as a bar against the protest, which would be made unless it was paid, (and as is usual in case of notes in dispute,) to guard against loss of credit by a protest. And that from the whole conversation, Higginbothom was under a persuasion when the defendant left the bank, that that course would be adopted. The plaintiff then, having executed a release to Wallis of all actions, liability, &c. produced Wallis, and offered to prove by him that the plaintiff was the holder of the said note, and had paid him the full value thereof before it became due, and that it was not deposited in the bank by him, Wallis, nor for his use, and that it was endorsed by Wallis to the plaintiff by Wallis's writing his name upon the back of it at the time of the delivery thereof by him to the plaintiff. The defendant objected to Wallis [**11]  being sworn as a witness to prove the above facts. But the Court, [Bland, A. J.] was of opinion that he was a competent witness, and he was accordingly sworn. The defendant excepted.

2. And thereupon Wallis being examined, gave in evidence that he received the note from Dorsey on the 6th of May 1813, dated March 6th, 1813, payable sixty days after date to    , or order, and that he Wallis advanced to Dorsey, $ 4600 on the said 6th of May, and informed Dorsey that he would that day put the said note in the Marine Bank of Baltimore for discount, and would pay him the balance on the next day if he would call; that the said note was not discounted at the Marine Bank, on account of its having but a few days to run at the time it was so offered for discount; that when said note was so refused to be discounted at the Marine Bank, for the cause aforesaid, he Wallis received information from said bank, that if he would procure a note from Charles Gwinn and Company, payable at sixty days, it would be discounted, of which he sent to inform Dorsey, but understood that he had failed and was not to be seen by the clerk who was sent; and that Wallis endorsed said note before it was due,  [**12]  delivered it to the plaintiff, and received from him the whole amount mentioned in said note, without informing him of any of the circumstances concerning the manner in which he received it. That Wallis did not deposit said note in the Union Bank, nor was it to be collected for his use, nor was it protested at his instance or on his account, nor has he refunded any part of the amount of said note to the plaintiff; that the note was delivered by him to the plaintiff as the private property of the plaintiff, and not as teller of the Union Bank; that he Wallis had been in the habit of lending Dorsey money at legal interest, and frequently for several days without interest; that Wallis did not know at the time he received the said note, that it had not sixty days to run, nor did he know it till he sent it to be discounted at the Marine Bank, and received information therefrom as above mentioned; that it had but a few days to run, as he Wallis was very ill at the time he was as aforesaid applied to by Dorsey to advance him the money on said note; that Dorsey did not call on Wallis on the next day after the note was offered at the Marine Bank, nor at any other time, otherwise he Wallis would,  [**13]  after receiving the amount of the note from the plaintiff, have paid to Dorsey the balance of said note. That at the time Wallis advanced the money on said note, and at the time Dorsey failed, Dorsey was and still is largely indebted to Wallis. The plaintiff further gave in evidence, that it was and is the usage and custom of merchants, and of the different banks in the city of Baltimore, to discount notes drawn in blank. The plaintiff then prayed the direction of the court to the jury, that if the jury believed that the note was originally drawn by the defendant, and his late partner William Smith, in the manner the defendant offered in evidence, and that Wallis by endorsing and delivering the note to the plaintiff transferred it to the plaintiff for value before it became due, and that the plaintiff, at the time of the said delivery and endorsement, and paying value for the same, had no notice or knowledge of any mistake being committed in the date of the note, or of any negotiation between Charles Gwinn and Company, and Dorsey, or between Dorsey and Wallis, respecting the note, then the plaintiff was entitled to recover. Which direction the court refused to give to the jury, and [**14]  gave this direction--That if the jury believed from the whole evidence that the object and intent was, at the time the note was drawn, to lend or to borrow money, and that the note was made and drawn for that purpose, and a loan of money was thereby obtained at a rate of interest of more than six per cent per annum, then the note was usurious in its inception, and void, and the plaintiff could not recover; but on the other hand if they believed from all the evidence that the note was made and passed bona fide by the defendant and his late partner, and that a subsequent holder passed it for a usurious consideration, to which the plaintiff was in no manner privy, then the plaintiff was entitled to recover. The plaintiff excepted.

3. The plaintiff further prayed the court to direct the jury, that there was no evidence from which they could find that the note was given by Charles Gwinn & Co. to Dorsey, upon a usurious consideration. Which direction the court refused to give. The plaintiff excepted.

4. The plaintiff further prayed the court to direct the jury, that there was no evidence from which they could find that the note was negotiable by Dorsey to Wallis on a usurious consideration.  [**15]  This direction the court refused to give. The plaintiff excepted.

5. The plaintiff further prayed the court to direct the jury, that if they believed the whole evidence in the cause, that then the plaintiff was entitled to recover. This direction the court also refused to give. The plaintiff excepted.

6. The defendant then offered in evidence, that John Reece, the clerk of the defendant, did at the defendant's request go to the dwelling-house of Wallis, where he was confined from indisposition, and told him of the mistake that had been committed by the defendant in signing the note; which was antedated sixty days before its execution, and informed him that it was the desire of the defendant that he would correct the said mistake by altering the date to the true time, but that Wallis refused to make the said alteration, and said it should be protested in case it was not paid when it became due according to the existing date, and which reply the witness communicated to the defendant. The defendant then, in order to prove that Wallis was the holder, and was at the time of its being protested the holder of the said note, offered to give in evidence that the notary, on the evening [**16]  of the day when the note was put into his hands to be protested, went to the competing house of Wallis, who was sick and not there, but that he saw the clerk of Wallis, and informed him that the note lay over at bank, and would be protested; whereupon the said clerk informed him the notary that Wallis had left express orders that the note should be protested. To this evidence the plaintiff objected. But the court was of opinion that the evidence was proper and competent, and permitted it to be given to the jury. The plaintiff excepted.

7. The plaintiff then moved the court to direct the jury, that that part of the testimony of Dorsey in the first bill of exceptions, where he states "that the sum of $ 150, retained by Wallis, as he Dorsey understood and presumed, was about the sum intended to be charged for discount upon said note," was illegal and inadmissible, and ought not to be given to the jury. This direction the court refused, and permitted said testimony to be given to the jury. The plaintiff excepted. Verdict and judgment for the defendant, and the plaintiff appealed.  

DISPOSITION:
JUDGMENT REVERSED, AND PROCEDENDO AWARDED.  

HEADNOTES:

Where a variety of contested facts were laid before the jury, and on consideration of them they had to decide whether a promissory note had been tainted with usury in its inception or negotiation, it is not for the court to advise them as to the conclusions they are to draw the one way or the other.

It is sometimes the duty of the court to decide this law upon facts, but it is after they are well ascertained by admissions or otherwise, and not while they are unsettled between the parties.

If a note is drawn to borrow money at illegal interest, and the holder obtains money on it on a usurious consideration, the note is under any circumstances void. But if the note is bona fide in its origin, an innocent holder without notice may recover on it, though it may have been subsequently passed upon a usurious consideration.

Whether a note drawn to borrow money is usurious and void in its inception, because money has been obtained on it by the holder on a usurious consideration, although the drawer, at the making the note, has no knowledge that such a use was to be made of it? Quere.

Although the declarations of a merchant's clerk made to a notary public in the course of business, may be used as evidence for some purposes, they cannot be so used to establish a fact not immediately connected with the solemnity of protesting.

Where a part of the testimony of a witness was "that the sum of $ 150 retained by W, as he the witness understood and presumed, was about the sum intended to be charged for discount upon the said note"--Held, that the expressions, "as he the witness understood and presumed," taken alone and unconnected by others used by him, imported his opinion, and were in themselves inadmissible evidence; but that as they could not be separated from the other part of the testimony without doing more mischief than the retaining them would do, they were admissible evidence.

Held by Baltimore county court, that the payee of a promissory note is a competent witness, in an action on it by the holder against the maker, to prove that the plaintiff was the holder of the note, and had paid him the full value thereof before the note became due, and that the note was not deposited in the bank by him the witness, nor for his use, and that it was endorsed by him to the plaintiff by his writing his name upon it at the time of the delivery thereof by him to the plaintiff.  

COUNSEL:
Martin, (Attorney General,) and Taney, for the Appellant.  [**17]  The first count in the declaration is on the note to Wallis, and by him endorsed to the plaintiff. The second on a note payable to bearer, and that the plaintiff became the bearer and holder; and the third count is for money had and received. They contended, on the second bill of exceptions, that if the note was bona fide in its commencement, then it could not be vitiated by any subsequent usurious dealings, as to an innocent endorsee, without notice. The omission to insert in the note the name of the payee, will not prevent it from being an efficient instrument from its first commencement. On such a note the holder may sue, and has a right to fill up the name of the payee, or to declare on it as a note payable to bearer. A note originally valid is not made void as to an innocent endorsee, without notice, by any usurious dealings between the parties interested in the note before it came to his hands. Parr vs. Eleason, 1 East, 93. Chitty on Bills, 109, (101,) 78, 79, (note 7) 103. Gibson vs. Minet, 1 H. Blk. Rep. 569; and Collins vs. Martin, 1 Bos. & Pull. 650.

On the third bill of exceptions. There was no consideration passing between Gwinn and Dorsey, and of course there could [**18]  be no usurious consideration. By refusing the plaintiff's prayer the court below seemed to think there was evidence of usury between Gwinn and Dorsey.

On the fourth and fifth bills of exceptions. To constitute usury there must be an agreement between the parties. It need not be in words. But here the whole evidence goes to show that there was no agreement between Gwinn and Dorsey which could look like a usurious consideration. If the jury believed the evidence, they could not find the transaction usurious. They referred to the act of 1704, ch. 69. Stat. 12 Car. II, ch. 13; and 1 Harr. Ent. 603.

On the sixth bill of exceptions. The declarations of Wallis's clerk were improperly admitted in evidence against the plaintiff. If he had been the plaintiff's clerk it would not have been different. The declarations of an agent not engaged in the immediate business of his principal, are not evidence. 1 Phill. Evid. 77, 78.

On the seventh bill of exceptions. The evidence of Dorsey, in the latter part of his testimony, was an inference of his own, and was not founded upon any fact--it was a mere matter of opinion; and if the fact did not justify the inference, it is not evidence.  [**19]  1 Phill. Evid. 209. Hoddy's Lessee vs. Harryman, 3 Harr. & M'Hen. 581. Davidson's Lessee vs. Beatty, Ibid 594.

Pinkney and Winder, for the Appellee. The only question is, whether there is any evidence to prove the transaction to be usurious. If the court below were right in the opinion given, as stated in the second bill of exceptions, then it was wholly unnecessary for the court to give any other opinion in the case. The evidence is clear, that Wallis was the real holder of the note, and not the plaintiff. There was an attempt made to smuggle in the name of the plaintiff as an innocent endorsee, to free the case from the charge of usury. If A gives B a note, for the purpose of borrowing money on it, and B does borrow money at a usurious interest from C, it is usurious in its inception. Bailey's Dig. tit. Usury, 411. Wilkie vs. Roosevelt, 3 Johns. Cas. 66. If Dorsey's name had been filled up in the note, he could not recover from the defendant, there being no consideration. The first consideration was when the note got into the hands of Wallis, and that was usurious, and no subsequent endorsee without notice could recover on it. The note had no legal commencement until it was [**20]  filled up with the name of Wallis, who furnished the consideration. It could not be looked upon as a legal note until the blank was filled up. The jury were the proper judges whether or not there was any usury in the transaction. The act of 1704, ch. 69, clearly covers a transaction like the present.

On the third bill of exceptions. It was wholly out of the case as to the consideration between Gwinn and Dorsey. Dorsey was considered as the agent of Gwinn, and the court were well justified in refusing to give the direction asked for in this bill of exceptions.

On the fourth and fifth bills of exceptions. If the court had given the directions prayed for in these bills of exceptions, it would have been taking from the jury the decision of facts.  

JUDGES:
The cause was argued in this court on all the bills of exceptions, except the first, before EARLE, JOHNSON, and MARTIN, J.  

OPINIONBY:
EARLE 

OPINION:

 [*516]  EARLE, J. delivered the opinion of the court. In this case there are several bills of exceptions in the record, the first of which, taken on the part of the plaintiff below, (being the second in the record,) contains all the material facts in the cause, and presents for consideration [**21]  the principal subjects of controversy between the parties.
In this bill of exceptions the court below was called on to direct the jury, that if they believed the note was drawn by Gwinn & Co. in the manner they offered in evidence, and that John Wallis had transferred the same to Andrew Burt for value, before it became due, and that Andrew Burt, at the time of the endorsement to him, had no notice of any negotiation between Charles Gwinn & Co. and Joshua Dorsey, or between Joshua Dorsey and John Wallis, respecting the said note, that then the plaintiff, Andrew Burt, was entitled to recover. This direction the judge very properly refused to give, having a just regard, as we presume, to the rights of the jury, upon whose province he must have encroached if he had gratified the prayer of the plaintiff. A variety of strongly contested facts were laid before the jury, and on the consideration of them they had to decide whether the note had been tainted with usury in its inception or negotiation, and it was not for the court to advise them as to the conclusions they were to draw the one way or the other. It is sometimes the duty of the court to decide [**22]  the law upon facts, but it is after they are well ascertained by admissions or otherwise, and not while they are unsettled between the parties. The court below expressed an opinion, however, to the jury, in which we entirely coincide, as it is understood by us. We suppose the judge only intended to say, that if the note was drawn by Charles Gwinn & Co. to borrow money at illegal interest, and the holder did accordingly obtain money thereby on a usurious consideration, the note was void, and the plaintiff could not, under any circumstances, recover on it; and on the other hand, that if the note was bona fide in its origin, the plaintiff might recover on it, provided he had no knowledge of its being subsequently passed upon a usurious consideration. Some broad expressions used in the first part of the opinion seem to militate against this construction of it, but when we think that the whole is considered together, and particular attention is bestowed on the latter part of it, the meaning we have ascribed to the judge is obvious. Thus understood, the opinion does not suggest the question discussed on the argument, "whether a note drawn to borrow money is usurious and void in its [**23]  inception, because money has been obtained on it by the holder on a usurious consideration, although the drawer, at the making of the note, had no knowledge such a use was to be 

 [*517]  made of it;" and the court do not mean to express any opinion on this point.
We are of opinion, that the court below was correct in refusing to direct the jury according to the plaintiff's prayers set forth in the second, third and fourth bills of exceptions, (being the third, fourth and fifth in the record.) The prayer in the fourth is as general as the prayer in the first bill of exceptions, and the second and third exceptions differ from them only in this, that the judge is required to direct the jury as to the question of usury on detached parts of the transaction, and not on the whole of it.
From the opinion of the judge expressed in the fifth bill of exceptions, (being the sixth in the record,) we dissent; and as to this point the judgment must be reversed. However the declarations of a merchant's clerk to a notary public in the course of business may be used for some purposes, they cannot be used in evidence to establish a fact not immediately connected [**24]  with the solemnity of protesting. The defendant wished to prove that John Wallis was the holder of the note, and he proposed to do it by the admissions of John Wallis. This it was competent for him to do by correct and legal testimony, in which light we cannot consider the declaration of his clerk, not made on oath. Such declarations were yet more improper to discredit John Wallis, who was sworn as a witness in the cause. We must then view those declarations as inadmissible proof, and think the judge erred in suffering them to be laid before the jury.
We concur with the court below in the opinion delivered in the sixth bill of exceptions, (being the seventh in the record.) If all the expressions of the witness, Joshua Dorsey, objected to by the plaintiff, had been expunged from his testimony as detailed in the first bill of exceptions, what remained would have been wholly unintelligible, and if those most particularly objectionable, to wit. "as he Dorsey understood and presumed," had been erased, the witness would have been made to speak a language he never intended to utter. Remove those expressions and the testimony would read thus, "that the sum [**25]  of $ 150, retained by the said Wallis, was about the sum intended to be charged for discount on the note," which evidence Dorsey never meant to deliver. Those last expressions of the witness taken alone, and unconnected with others used by him, import his opinion, and are in themselves inadmissible evidence; but the court cannot perceive how the judge could have separated them from the other parts of the testimony, without doing more mischief, than the retaining of them would have done.
JUDGMENT REVERSED, AND PROCEDENDO AWARDED.  

11 of 22 DOCUMENTS 

RIDGELY VS. RIGGS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

4 H. & J. 358; 1818 Md. LEXIS 17 

June, 1818, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court. This was an action of assumpsit, on a special agreement, brought on the 30th of September 1814. The declaration contained four counts. The first, "that whereas on the 10th of March 1814, at Baltimore, to wit, at the county aforesaid, a certain discourse was had and moved between the defendant, (now appellee,) and the plaintiff, (the appellant,) on the terms upon which the loan to be brought forward by the United States for the said year 1814, would be effected; upon which said discourse then and there, that is to say, on, &c. at, &c. in consideration that the plaintiff, at the special instance and request of the defendant, had then and there undertaken to subscribe in the name and for the use of the defendant, to the aforesaid loan, to the amount of $ 15,000, and had also then and there undertaken and promised that the said amount of $ 15,000 should not cost the defendant any higher rates than the United States loan of 16 millions was obtained at, he the defendant then and there undertook and faithfully promised the plaintiff, that he the defendant would make all the payments which might be required on the said subscription to the said loan, to [**2]  the amount of $ 15,000, at the rate or rates aforesaid, whenever the said payments should respectively become due; and that in case the said $ 15,000 of the said loan for the said year 1814, should be rated to, and cost him the defendant less than the same sum was rated to and cost the original subscribers to the aforesaid loan of 16 millions, that he the defendant would pay to the plaintiff the difference on the amount of $ 15,000. And the plaintiff in fact saith, that afterwards, to wit, on, &c. he the plaintiff did subscribe, in the name and for the use of the defendant, to the said loan, for the said year 1814, to the amount of $ 15,000, upon the following terms; that is to say, at $ 80 for each $ 100 of stock subscribed for, which was $ 80 per share of stock less than the terms of subscription to the said loan of 16 millions; by means whereof the defendant became liable to pay to the plaintiff the said difference in the terms on the sum of $ 15,000, to wit, the sum of $ 1364 current money, of all which premises the defendant on, &c. at, &c. had notice, and the plaintiff then and there requested the defendant to pay him the said sum of $ 1364 current money, according to the said [**3]  promise and undertaking of him the defendant." The second count: "And whereas also, to wit, on, &c. at, &c. in consideration that the plaintiff at the like special instance and request of the defendant, had then and there undertaken to subscribe in the name, and for the use of the defendant, to the aforesaid loan for the year 1814, to the amount of other $ 15,000, and had also then and there undertaken and promised, that the said amount of $ 15,000 should not cost the defendant any higher rates than the loan of 16 millions was obtained at, he the defendant then and there undertook, and faithfully promised the plaintiff, that he the defendant would make all the payments on the said stock of $ 15,000; and that in case there should be any difference of cost of the said $ 15,000, more or less than that of the 16 millions loan, that such difference of cost should be paid in money by the losing party. And the plaintiff in fact saith, that afterwards, on, &c. at, &c. he the plaintiff did subscribe in the name and for the use of the defendant, to the said loan for the year 1814, to the amount of $ 15,000, which said amount of $ 15,000 did not cost him the defendant any higher rates than the [**4]  loan of 16 millions was obtained at. And that there was a difference of cost of the said $ 15,000, to wit, the sum of $ 1364 less than the price of the same sum of the said 16 millions loan to the original subscribers, in consequence whereof the defendant was the losing party; by means whereof the defendant became liable to pay to the plaintiff the said difference of cost of the said $ 15,000, to wit, the sum of $ 1364 current money--of all which premises the defendant on, &c. at, &c. had notice, and the plaintiff then and there requested the defendant to pay him the said sum of $ 1364 current money, according to the said promise and undertaking of him the defendant." The third count: "And whereas also heretofore, to wit, on, &c. at, &c. in consideration that the plaintiff, at the like special instance and request of the defendant had then and there undertaken to subscribe in the name and for the use of the defendant to the aforesaid loan for the year 1814, to the amount of other $ 15,000, and had also then and there undertaken and promised that the said amount of $ 15,000 should not cost the defendant any higher rates than the aforesaid loan of 16 millions was obtained at, he the [**5]  defendant then and there undertook and faithfully promised the plaintiff, that he the defendant would make all the payments which might be required on the said subscription to the said loan, to the amount of 15,000 dollars, whenever the said payments should respectively become due; and that in case the said 15,000 dollars of the said loan for the year 1814 should be rated to and cost him the defendant less than the same sum was rated to and cost the original subscribers to the aforesaid loan of 16 millions, that he the defendant would pay to the plaintiff the difference on the amount of 15,000 dollars. And the plaintiff in fact saith, that afterwards, to wit, on, &c. he the plaintiff did subscribe in the name and for the use of the defendant, to the said loan for the year 1814, to the amount of 15,000 dollars, upon the following terms; that is to say, at 88 dollars for each 100 dollars of stock, with this proviso, that in case any of the said loan for the year 1814 should be sold by the government at any terms lower than 88 dollars for each 100 dollars of the loan, that then and in such case the government should return to the defendant the said difference. And the plaintiff further [**6]  saith, that the government did sell part of the said loan for the year 1814, at 80 dollars for each 100 dollars of the said loan subscribed for, and in conformity with the proviso of the plaintiff, did return to the defendant the difference of eight dollars for each 100 dollars of the loan subscribed for, in consequence whereof the said 15,000 dollars was rated to and cost the defendant less than the same sum was rated to and cost the original subscribers to the said sixteen millions loan; by means whereof the defendant became liable to pay to the plaintiff the said difference in price, to wit, the sum of $ 1364 current money. Of all which premises the defendant on, &c. at, &c. had notice. And the plaintiff then and there requested the defendant to pay him the said sum of $ 1364 current money, according to the said promise and undertaking of him the defendant." The fourth count: "And whereas also heretofore, to wit, on, &c. at, &c. a certain discourse was had and moved between the defendant and the plaintiff, on the terms upon which the loan then about to be brought forward by the United States for the year 1814, would be effected; upon which said discourse the plaintiff then and there [**7]  affirmed, that if the defendant would authorize and empower him the plaintiff, in writing, to subscribe in the name and for the use of the defendant, to the said loan for the year 1814, to the amount of $ 15,000, and would engage in writing to make all the payments on the said amount of $ 15,000, whenever they should respectively become due, that he the plaintiff could procure for the defendant $ 15,000 of the said loan for the year 1814, at such rates and upon such terms as that the said amount of $ 15,000 of the said loan for the year 1814, should cost the defendant less than the same amount of $ 15,000 of the loan of sixteen millions cost the original subscribers, which the defendant did deny, and did promise the plaintiff, that in case he the plaintiff would promise to procure for the defendant $ 15,000 of the said loan for the year 1814, at the rates and terms aforesaid, and would promise to pay the difference in case the said $ 15,000 of the said loan should cost more than be the defendant would authorize and empower him the plaintiff, in writing, to subscribe in the name and for the use of the defendant to the said loan for the year 1814, to the amount of $ 15,000, and would [**8]  engage in writing to make all the payments on the said amount of $ 15,000 whenever they should respectively become due, and that in case he the plaintiff should procure the said amount of $ 15,000 at such rates, and upon such terms as that the said amount of $ 15,000 should cost the defendant less than the same amount of the said loan of sixteen millions cost the original subscribers, that he the defendant would pay to the plaintiff the difference. And the plaintiff in fact saith, that he did promise the defendant as aforesaid, and that in compliance with his promise, he the plaintiff did procure for the defendant $ 15,000 of the said loan for the year 1814, upon the following terms; that is to say, at $ 80 for each $ 100 of the said loan subscribed for, which was eight dollars for each $ 100, less than the loan of sixteen millions cost the original subscribers, making a difference of $ 1364; by means whereof the defendant became liable to pay to the plaintiff the said difference, to wit, the sum of $ 1364 current money. Of all which premises the defendant on, &c. at, &c. had notice; and the plaintiff then and there requested the defendant to pay him the said sum of $ 1364 current [**9]  money according to the said promise and undertaking of him the defendant. Nevertheless," &c. The general issue was pleaded. And at the trial the plaintiff gave in evidence the following memorandum, in writing, made by William Norris, by the direction of the plaintiff and defendant, and which was signed by said Norris by the direction of both plaintiff and defendant, as their agent; "Balto. 1th Feby. 1814. Mr. Lott Ridgely has agreed to furnish Mr. George Washington Riggs with $ 15,000 amt. of United States loan, to be furnished out of the first loan at $ 88 for 100 in stock.

William Norris."

The plaintiff further gave in evidence the following written agreement, and which it was admitted was signed by the defendant: "Baltimore, March 10th, 1814. In compliance with an agreement made between Lott Ridgely and myself, I hereby authorize and empower him to subscribe in my name, and for my use, to the loan shortly to be brought forward by the United States for the present year, to amount of fifteen thousand dollars, which amount he engages and secures to me shall not cost to me any higher rates than the loan of sixteen millions was obtained at, and I hereby engage to make all payments [**10]  on the said stock of $ 15,000, he also engaging to me that it shall be rated and cost me as did that of the sixteen millions loan to the original subscribers. In case any difference of cost of the said $ 15,000 more or less than that of the sixteen millions loan, such difference of cost shall be paid in money, by the losing party. Mr. Ridgely is also authorized to make good his contract with me by the purchase of stock of any of the former government loans, and I contract on my part to make payment for such stock on the same days and proportions of installments on which the new loan is settled and demanded.

Geo. W. Riggs."

It was admitted by the defendant, that in pursuance of the act of congress of the 24th March 1814, the secretary of the treasury of the United States offered to borrow ten millions of dollars, part of the twenty-five millions authorized to be borrowed by said act of congress, and appointed the second day of May in the same year, at the Mechanics Bank of Baltimore, to receive subscriptions for the said loan; and that the plaintiff did, on the said 2d of May, subscribe for and on behalf of the defendant, $ 15,000 to the said loan, at the rate of $ 88 for [**11]  every $ 100 of stock created therefor by the United States; that is, for the said $ 15,000 so subscribed, he obtained certificates of scrip to the amount of $ 17,045 50; to which said certificates the following condition was annexed, to wit: "And if any part of the sum of 25 millions of dollars, authorized to be borrowed by the act aforesaid, shall be borrowed upon terms more favorable to the lenders, the benefit of the same terms will be extended to the person or persons who may then hold this scrip certificate, or certificate of funded stock which may be issued in lieu of it, after the payments upon it are completed." It was also admitted, that the defendant paid the several installments, as they became due, according to the terms of said subscription; and that the plaintiff did, in pursuance of the agreement and authority herein before set forth from the defendant, deliver to the defendant the said certificates of scrip for said subscription, with the condition aforesaid annexed to each of them. It was also admitted by the defendant, that the secretary of the treasury, in pursuance of the said act of congress, proposed to receive further subscriptions for six millions of dollars,  [**12]  a further part of the said loan of twenty-five millions of dollars, authorized by the act of congress aforesaid, and appointed the 22d day of August 1814, at the Mechanics Bank of Baltimore, and authorized Dennis A. Smith to receive said subscriptions; and then and there a large amount, to wit, about three millions of said loan, was subscribed for by divers persons at the rate of $ 80 for every $ 100 worth of stock to be created therefor by the United States. And the defendant, being the holder of the said certificates of scrip delivered to him by the plaintiff, applied to the proper officer of the government of the United States for that purpose, and received, in pursuance of the condition aforesaid annexed to said certificates of scrip, on the 2d of December 1814, certificates of stock thereon for the further sum of $ 1,704 50, being the amount of the difference between $ 88 the price of subscription for every $ 100 of the loan of sixteen millions referred to in said agreement and authority signed by defendant, as herein before set forth, and $ 80 for every $ 100 of stock, the price of the subscription made as aforesaid on the 2d of May aforesaid, as regulated and fixed by the rate [**13]  of subscription aforesaid on the 22d of August 1814. It was further admitted, that the whole of said loan of twenty-five millions of dollars, authorized by the said act of congress aforesaid, has never been filled up. The defendant then moved the court to direct the jury, that if they believed these facts so given in evidence and admitted, the plaintiff was not entitled to recover. Which opinion and direction the Court, [Bland and Hanson, A. J.] accordingly gave. The plaintiff excepted; and the verdict and judgment being against him, he appealed to this court.  

DISPOSITION:
JUDGMENT REVERSED, AND PROCEDENDO AWARDED.  

HEADNOTES:

L R and G R entered into the following agreement in February 1814: "L R has agreed to furnish G R with 15,000 dollars amount of United States loan, to be furnished out of the first loan at 88 dollars, for 100 dollars in stock." And afterwards in March 1814, the following agreement was entered into and signed by G R, viz. "In compliance with an agreement made between L R and myself, I hereby authorize and empower him to subscribe in my name and for my use, to the loan shortly to be brought forward by the U. S for the present year, to amount of $ 15,000, which amount he engages and secures to me shall not cost to me any higher rate, then the loan of 15 millions was obtained at; and I hereby engage to make all payments on the aid stock of $ 15,000, he also engaging to me that it shall be rated and cost me as did that of the 18 millions loan to the original subscribers. In ease any difference of cost of the said $ 15,000 more or less, than that or the 16 millions loan, such difference of cost shall be paid in money by the losing party. L R is also authorized to make good his contract with me by the purchase of stock of any of the former government loan., and I contract on my part to make payment for such stock on the same days and proportions of installments on which the new loan is settled and demanded." Upon the last mentioned agreement L R brought an action of assumpsit against G R, averring in his declaration (having sundry counts,) that he, L R, did, in the name of G R, subscribe for 15,000 dollars of the loan of 1814, at 80 dollars for each 100 dollars, being 8 dollars for each 100 dollars less than the loan of 16 millions cost the original subscribers, making a difference of 1364 dollars, for which last sum the action was brought. Under the act of Congress of March 1814, the Secretary of the Treasury in May 1814, offered to borrow 10 millions of dollars, part of the 25 millions authorized to be borrowed by that act L R subscribed for G R $ 15,000, at the rate of 88 for 100 and obtained certificates of scrip for 17,045 50, to which was annexed a condition, that if any part of the 25 millions should be borrowed upon terms more favorable to the lenders, the benefit of such terms would be extended to the persons who may then hold the scrip certificates, or certificates of funded stock G R paid the several installments on the loan, and L R delivered to G R the certificates of scrip. In August 1814 a further subscription for 6 millions of dollars was proposed by the Secretary of the Treasury, and 3 millions subscribed for at 80 dollars for every 100 dollars. G R, being the holder of the scrip certificates, applied for and obtained certificates of funded stock thereon, for the further sum of 1704 50 dolls. The county court gave judgment that L R was not entitled to recover. On appeal, reversed; and also held that the declaration (to which objections were made) was sufficient.

A speculating contract as to the price of stock is not a wager inconsistent with the policy of the law, and therefore not void under the act of 1813. ch. 84.  

COUNSEL:
Winder, for the Appellant. The only question in the cause is, whether the proof supports the case as set forth in the declaration? The plaintiff was only bound to state the legal effect of his contract, and this legal effect is sustained by the proof. He performed the services, and comes within the defendant's promise.

Another question may probably be raised--Whether it is not an illegal wager upon which the party cannot recover? It was a sort of insurance, and is not a wager in a legal or vulgar acceptation of the term. What might be illegal in England, as in Atherfold [**14]  vs. Beard, 2 T. R. 610, as to a speculation in the public funds, would not be so here. The essence of our government is that the public revenue should be discussed. Stockjobbing was universally permitted in England, until prohibited by act of parliament in particular cases; but there is no prohibition in this country.

Pinkney, for the Appellee. 1. The two agreements offered in evidence are to be taken together. The declaration and the agreement are at variance, and the court below were right in saying the plaintiff was not entitled to recover. None of the counts in the declaration are suited to the plaintiff's case. The first count is objected to on two grounds--1st. It mistakes the terms upon which the loan was negotiated. It does not contain the precise terms of the contract; but states the terms of the loan peremptory at 88, with a condition depending upon an event which might or might not happen. 2d. The consideration of the promise is mistated, or rather it is inconsistent with the agreement. If it is a mistatement, it is fatal. It is a mistatement essential and at variance with the contract. The engagement of the 8th of February 1814, is to furnish 15,000 dollars out of [**15]  the first loan at 88 for 100. This was afterwards modified on the 10th of March, and the effect of the two engagements gave him an alternative. He might forbear to execute the promise in the engagement of the 10th of March. What is represented as the promise was not the inducement. He might furnish other stock, and this is not set out in the count, and is therefore at variance with the agreement. If it is necessary to set out the consideration, so must also the promise be set out. The consideration is an essential part of the contract. It is the foundation upon which the promise stands, and it is as necessary to be set out as the promise; and a mistatement of the one is as fatal as the other. Penny vs. Porter, 2 East, 2. turned upon the mistatement of the promise, and is similar to a mistatement of the consideration. Here the plaintiff has averred a promise, without stating the alternative--it is therefore not the same promise that was entered into. He was bound to set out his own obligations. The whole consideration of the promise must be stated, otherwise the contract is mistated, and is a fatal variance. Miles vs. Sheward, 8 East, 9. This was a connected transaction, and the whole [**16]  should be stated. The contract on the part of the plaintiff was a condition precedent, and forms the substratum upon which the whole was founded. The plaintiff did subscribe for the stock, and put an end to the alternative. It was not necessary to meddle with the matter of fact. He was bound to set out his contract with reference to the defendant. Subsequent events having rendered it unnecessary has nothing to do with it. He must set out what the promise was, and that he had elected one of the two alternatives, and then the evidence would be applicable to the subsequent events. He cannot count solely on the legal effect, as brought about by subsequent matters. Every plaintiff is bound to mount up to the commencement of the contract, and should set the whole out. The same objections equally apply to the second count. The third count has two essential defects. It substitutes what is not in the contract--"then and in such case the government should return to the defendant the said difference." There is no such provision in the agreement. The government made no such pledge. The difference was to be made up by stock to the holder of the certificate at the epoch of completing the loan. This [**17]  is not only an inartificial statement, but is an inadequate one. It might never be a matter of fact that a loan would be negotiated, or that any part of it would be negotiated on different terms. It depended upon a variety of circumstances--Whether the government would want more money--Whether lenders could be procured and the terms, &c. It was a mere possibility whether the person who obtained the certificate should be the holder at the time when the contingency might happen. It might be the defendant, or his executors or assignees. If it was incumbent on the plaintiff to state the proviso, it was incumbent on him to do it correctly. The fourth count states a conversation and assumption, that the plaintiff took upon himself and promised the defendant, that he would procure the loan for less, &c. Here is a wager; it is a bet that he would get it for less, but no promise that he would procure it for less than 88 for 100. This difference constitutes the wager. One party does not wish the other to perform, but wishes him to fail to perform. The plaintiff did not promise to deliver the stock for less than 88 for 100. The whole declaration is manifestly defective; and if this was an action [**18]  entitled to the peculiar favour of the court, still the consideration and promise must be correctly stated in the declaration.

2. This action was brought on the 30th of September 1814, and the second certificate for the stock was received by the defendant in December 1814, after the action was brought. The plaintiff can only recover upon the right as it existed at the time the suit was brought. If the subsequent receipt of the second certificate, produced in evidence, has any thing to do in the cause, then the suit was brought too soon. The plaintiff having sued before his right of action was perfected, he must fail.

3. But this was a mere wager, inconsistent with the policy of the law, and is therefore void, under the act of December 1813, ch. 84. It is manifestly a wager, and cannot be considered in any other light. Here the defendant was to pay--the plaintiff to pay nothing. The wager then commences--that the stock will cost more or less--the difference to be paid by the losing party. What is a wager, if this is not? The plaintiff was to pay nothing, but was only to act ministerially in subscribing to the loan. He contracted no liability by subscribing; for so soon as [**19]  he does subscribe, the defendant pays. Then comes the wager--if the stock loaned is higher or lower, then to pay or not. This was a contingency; and if so, then the bet was void at law. If considered as a wager, the act of 1813 puts it out of the question, and the plaintiff cannot recover.

4. What is the import of the contract compared with the subsequent events? Putting the technical objections to the declaration out of the way, has the plaintiff made out his case? He must show, without any ambiguity, that he has a right to recover. There is nothing in the peculiar merits of the case to induce the court to stretch the law so as to show the plaintiff has a right to recover. What part of the contract is it which induces a supposition that he has a right to recover? It is not the first engagement, because if the stock was procured under that engagement, the plaintiff would be satisfied. But it is not upon that engagement, it is upon the subsequent one that he relies. That engagement refers to the loan of 16 millions. Does it look to the event or end of that loan? How long were the parties to wait until the contract was completed? Here was a proviso, and the subsequent part of the [**20]  loan might never be negotiated. Was the contract to continue open waiting for an uncertain event which might never happen--a bare possibility to be realized at a distant period. The natural epoch to which they are disposed to look, is on the completion of that particular subscription--not to the subsequent loan. The stock might or might not be loaned on different contingencies, there being no positive provisions. It was a floating contract, and the possessor of the stock could not tell upon what terms he held it. Suppose the defendant had sold the stock before the loan was fully made, he would fail to receive the benefit which was given by the secretary of the treasury on the subsequent loan. The defendant had every thing to lose, and nothing to gain. His hands were tied up, and the plaintiff left to gain every thing, and to lose nothing. The epoch of the completion of the contract was to be the time of the negotiating of the loan, and it had nothing to do with waiting for what might happen on a further or second negotiating the loan; otherwise it would be to say that the defendant held the stock upon an uncertain tenor. He could not sell, for fear he might get less, and be liable [**21]  to pay the plaintiff for the deficiency. It would be locking up the stock, and keeping it out of market. If these are not matters of fact, they are what might have been facts. The parties risked on the original terms of the loan, and they looked to no other period. They could not suppose, at the time of the contract, that the whole loan would not have been taken at the first opening the subscription. The benefit given in the provinso was to whosoever should be the holder of the stock, and if the defendant had sold, he could not be benefited by the terms of the subsequent loan. How can this court, which seeks for certainty, say this is a case in which there is no uncertainty? Can this court believe it is clear that the parties looked to every possible event which might happen relative to the stock? Whatever construction the court may put upon the contract, they cannot say it is clear, and if there is doubt, the plaintiff must fail.

Winder, in reply. The plaintiff is not bound to state in his declaration the successive stages in the progress of a contract. It is only necessary to bring the particular fact before court. To show the legal effect of the contract, he might state, and [**22]  properly too, that he subscribed at 80 for 100. If the legal effect of subscribing at 88 for 100 is a subscription at 80 for 100, then the plaintiff's stating it to be at 80 is correct, and he need not state all the antecedent several stages which brought about the legal effect which is set out. It was a conditional act to be affected by a subsequent event, and if that event is stated, that is enough. In Penny vs. Porter, the party sued agreed to do one of two things. He was charged, and it should therefore be stated how he was charged, because he might prove that he had elected differently than that stated. But here the plaintiff, by stating in his declaration, shows his election, which he had performed. In the case cited, the defendant had an alternative, here the alternative was with the plaintiff. But this is not an alternative engagement. It is to furnish so much stock in the approaching loan. The plaintiff might accept one act in lieu of another; and it was only necessary for him to set out that which he had performed. Suppose a man engages to build a house by a particular day, and he so declares, but it turns out in evidence that he did not perform by the day; yet if he proves [**23]  he was excused by the defendant, still he may declare upon the original contract. The subsequent writing of March 1814, goes into a detail of the first engagement, and is nothing more than a mere permission given to the plaintiff what stock he might furnish, which he does not bind himself to do, and is not therefore an alternative engagement. The case of Miles vs. Sheward, does not bear more upon the case before the court than does Penny vs. Porter. If the two first counts are good, then it is immaterial what may be the character of the others, because this court may apply the verdict to any good count. The third count does, it is admitted, seem to be defective, and the objections to it to be valid.

But it is objected that the suit is prematurely brought, because the second certificate of stock was not received until after the suit was instituted. The moment it was ascertained that the subsequent stock, subscribed for in August, was obtained at 80 for 100, the plaintiff's cause of action accrued. He was then to consider his subscription in May, as a subscription in August. The objection therefore is wholly unfounded.

It is said again, this is a wager. If it is, every contingent [**24]  contract is a wager. Almost every contract depends upon a contingency; and if this is considered a wager, it will put an end to all contracts. Suppose A agrees to give B $ 3 per bushel for his wheat; but if the price in three months should be more or less, then A agrees to give that price. This is a wager about the price of wheat; but will it be said to come within the act of 1813. The words of that act embraces every insurance; but can it be supposed that the legislature intended to take in cases of insurance. The act is only intended to strike at gambling, and does not extend to contracts. There is nothing to constitute this contract a wager, unless it be because it depends upon a contingency. But it is said that the contract is ambiguous, and wholly uncertain, and, therefore, cannot be enforced; and it is contended to be uncertain, because it depends upon a contingency which possibly might not happen. Congress, however, supposed the contingency would happen. The parties did not create the contingency, it was the government who did it. If this was a subject which might be attached, then it entered into the contract of the parties. The government might borrow money, and fix the terms [**25]  at a future period. There can be no doubt or difficulty as to the contract. If the event had never happened, then the plaintiff would never have come into this court to enforce his contract. The parties chose to make the contract, and if it bears hard on the defendant, it was one of his own seeking. He made it with his eyes open. If there was any clog to the free circulation of the stock, who made it? not the plaintiff--It was the act of the government. The defendant was not bound to keep the stock, he might have parted with it if he had seen fit.  

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

OPINIONBY:
EARLE 

OPINION:

 [*368]  EARLE, J. delivered the opinion of the court, reversing the judgment of the County Court
BUCHANAN, J. dissented, on the ground that the declaration was bad.
JUDGMENT REVERSED, AND PROCEDENDO AWARDED.  

12 of 22 DOCUMENTS 

SLOAN VS. WILSON.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

4 H. & J. 322; 1818 Md. LEXIS 9 

June, 1818, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court. Assumpsit. The declaration contained three counts. The first on a promise by the defendant, (now appellant,) that in consideration of forbearance to pay $ 292, due from Jacob Fowble to the plaintiff, (the appellee.) The second count. The plaintiff, holder of a promissory note drawn on the 16th of September 1806, by Jacob Fowble, in favour of the defendant, for $ 292, payable 90 days after date, the defendant, the payee and endorsor thereof, on the 17th of September 1806, in consideration that the plaintiff would renew the note for other 60 days, and made payable to him the plaintiff, undertook and faithfully promised the plaintiff that if Fowble did not pay the note so renewed, at the expiration of the 60 days, that then the defendant would pay the plaintiff the said sum of $ 292. Averment, confiding in the promise, &c. the plaintiff did, &c. The third count. Jacob Fowble, on the 16th of June 1806, made his promissory note, payable and delivered to the defendant, promising to pay him, or order, 90 days after date, $ 292. That the defendant endorsed and delivered the note to the plaintiff. That on the 16th of September 1806, the defendant, in consideration [**2]  that the plaintiff would renew the note for Fowble for other 60 days, then and there undertook and faithfully promised the plaintiff, that if Fowble did not pay the note so renewed at the expiration of the 60 days, that then he the defendant would pay to the plaintiff the said sum of $ 292. Averment, that confiding, &c. the plaintiff did, on the 17th of September 1806, renew the said note for Fowble, whereby Fowble promised to pay to the plaintiff, or order, 60 days after date, the said sum of $ 292, for value received. That at the expiration of the said 60 days, the plaintiff showed the note to Fowble, and requested payment, but Fowble did not pay, &c. The general issue, and the act of limitations, were pleaded.

At the trial the plaintiff gave in evidence, that Jacob Fowble drew a promissory note in favour of the defendant, for the sum of $ 292, for value received from the defendant, and delivered the note to the defendant, who afterwards endorsed and delivered it to the plaintiff in payment of goods purchased by him of the plaintiff. That the note was put in bank by the plaintiff for collection. That Fowble, not being in readiness to pay it, the defendant wrote and delivered [**3]  to the plaintiff the following note, which was received by the latter on the 16th September 1806, viz. "Baltimore, 16--, 1806. Mr. Wilson, Sir. The small note you hold of Mr. Jacob Fowble for $ 292, if you will be so good and renew it for him, I will guarantee the payment of it at sixty days.

Jas. Sloan."

That in pursuance of this request the plaintiff did renew the note therein referred to, by taking the note of Fowble, which renewed note is in the words and figures following:

"$ 292.     Baltimore, September 17, 1826.

Sixty days after date I promise to pay to Nixon Wilson, or order, two hundred and ninety-two dollars, for value received.

Jacob Fowble."

Which note was thus endorsed, "Nixon Wilson." Which last mentioned note was put into bank for collection by the plaintiff, but was not paid when the same became due, or at any other time. The plaintiff also gave in evidence, that the defendant assumed the payment of the sum of money, for which the suit is brought, within three years before the issuing the writ in this cause. The plaintiff further proved to the jury that Fowble, shortly before or after the renewed note became due, removed from this state [**4]  to the state of Ohio, where he has continued to reside ever since; and that when the note was so renewed, the plaintiff delivered to Fowble the note herein first mentioned, with the defendant's endorsement thereon. The witnesses on the part of the plaintiff also proved, that the first mentioned note drawn by Fowble in favour of the defendant, was drawn payable to the defendant at six months, according to the best of their recollection and belief, but that they did not recollect the date thereof. The defendant then prayed the court to direct the jury, that this evidence did not support the declaration in this cause; which direction the Court, [Bland, A. J.] refused to give. The defendant excepted; and the verdict and judgment being for the plaintiff, the defendant appealed to this court.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

J S wrote to N W the following letter "The small note you hold of J F for $ 292, if you will be so good and renew it for him, I will guarantee the payment of it at sixty days."--Held, that it is such an agreement as will under the statute of frauds sustain an action against J S for the amount of J F's note, he having sailed to pay it.

An agreement to pay the debt of another must be in writing, signed by the party to be charged therewith. There must be a consideration for the promise, and that consideration must be set out in the agreement, and cannot be the subject of parol evidence The absence of either of these requisites under the statute of frauds 29 Car. II, are fatal

Whether J F's note was renewed or not is a matter proper to be left to the jury on the evidence.  

COUNSEL:
Winder, for the Appellant. 1. There is a variance between the engagement alleged in the special count in the declaration, and that offered in evidence. The court is not a legal exposition of the agreement to guarantee. The defendant guaranteed that Fowble would pay, but not that if Fowble did not pay, he would. 2. The written memorandum, upon which the action is founded,  [**5]  is not such an "agreement in writing" as the statute of frauds requires. The policy of this statute is best promoted by adopting a strictly legal interpretation of its provisions; and accordingly the courts of Great Britain, and this country, have preferred such a construction as will give to every word its proper technical signification. Chaplin vs. Rogers, 1 East, 194. Chater vs. Becket, 7 T. R. 200. Anstey vs. Marden, 4 Bos. & Pull. 132. Grant vs. Naylor, 4 Cranch, 224. The word agreement, therefore, used in the clause in the statute which governs this case, must be taken according to its strict legal signification, that is, a mutual contract between two or more persons, by which each comes under an obligation to the other, and upon which each acquires a right to what is promised by the other. Wain vs. Warlters, 5 East, 10. 1 Pow. on Cont. 6. 1 Com. Dig. 400. The memorandum in this case was not such an agreement--1st. Because it does not contain a good and sufficient consideration. Wain vs. Warlters, 5 East, 10. Sears vs. Brink, 3 Johns. Rep. 210, 215. 2d. Because there is neither mutuality of obligation, nor right of action. The engagement was all on one side. The plaintiff was [**6]  not bound by it; it was, therefore, nudum pactum. The contract was altogether executory. Egerton vs. Matthews, 6 East, 307; and Cooke vs. Oxley, 3 T. R. 653.

Hoffman, for the Appellee. It has been contended on the part of the appellant--1. That the letter from the defendant to the plaintiff is not a sufficient note or memorandum to satisfy the requisitions of the statute of frauds, (29 Car. II, ch. 2, s. 4.) because it was not signed by both parties. 2. That there is no mutuality or reciprocity of remedy; that if this should be held good as to the defendant, he has no remedy to compel the plaintiff to renew the note. 3. That no consideration appears on the face of the letter, and, therefore, is embraced by the decision in Wain vs. Warlters, 5 East, 10, in which the consideration was held to be an integral part of the agreement, and must distinctly appear, and that no evidence de hors the writing could be received to disclose the consideration. 4. That the consideration, if any, is executory, and no parol evidence should be allowed to show its execution.

1. The objection to a memorandum, under any of the sections of the statute, has been considered as finally put to rest by [**7]  a number of cases. The case of Champion vs. Plummer, 1 Bos. & Pull, 254, from which the doctrine of signature by both parties sprung, was on the 17th section of the statute, which requires, in the sale of goods, a memorandum "signed by the parties to be charged by the contract," a phraseology differing from the 4th section, which relates to collateral undertakings, and which requires the memorandum to be "signed by the party to be charged therewith." But even on the 17th section, this doctrine was found, in its practical application, to be highly inconvenient, and sometimes absurd, the case was therefore soon doubted, then qualified, and finally expressly overruled. In support of these positions, the court are referred to Seton vs. Slade, 7 Ves 275. Coles vs. Trecothick, 9 Ves. 235. Fowle vs. Freeman, Ibid 351. Bailey vs. Ogden, 3 Johns. Rep. 418. Egerton vs. Matthews, 6 East, 307. Roget vs. Merritt, 2 Caine's Rep. 120. Rob. on Frauds, Advir. VI. Sugden on Vend. and Pur. 43, (note) In fine, no case can be produced which requires the signature of both parties to a memorandum under the 4th section; the established doctrine is conceived to be, that on all of the sections which require [**8]  signing, the statute demands no more than the signature of the party to be charged. In the case at bar the name of the party to be charged is signed, which is all that either the English or American authorities now in any case require.

2. The next objection is equally untenable. The case of Lawrenson vs. Butler, 1 Sch. & Lefr. 20, does not contradict this assertion Stapp vs. Lill, 1 Camp. 242, is, however, decisive on this point. From this, and many other cases which might be cited, it appears that the doctrine of mutuality, contended for, is groundless, and certainly unsustained by authority; for it frequently is the case that no action will lie to compel a performance of that, which, when performed becomes a valid consideration to sustain a promise. This criterion, by which we are called on to test the responsibility of one, by the right of a cross action in the other, is, perhaps specious but not sound. But the very objection in the present case is founded, on a petition principii, for there can be no reason why the defendant could not have sustained a special action, were there proof of a promise to renew the note.

3. The difficulty which has been raised in this point [**9]  is grounded on the assumption that no consideration appears on the face of the paper, and also from inattention to the controlling difference between no consideration, and some, though not a very explicit one. In the present case there is a full and adequate consideration broadly expanded on the face of the letter, and that nearly every memorandum, to be found in the books as sufficient, is not more explicit, in its consideration, than the present. This doctrine has its chief, and only support in the case of Wain vs. Warlters, 5 East, 10. But that case differs from the one at bar in several material respects. 1st. It will be perceived that in that case the memorandum discloses no consideration whatever, it contains nothing more than a mere nude promise, which at common law, and, since the statute, can be creative of no legal obligation. But in the case at bar the defendant's letter itself states clearly the consideration of his undertaking, viz. the renewal of Fowble's note, as he calls it, for 60 days. 2d. Another difference is, that Warlters was an entire stranger to the original transaction. He was never known in it until he came forward, and by his letter promises to pay Waine [**10]  & Co. the amount of Hall's acceptance. Not so in the case at bar. It may here also be remarked, that there was no necessity for any consideration proceeding from Fowble to the defendant; it is sufficient if a consideration moves from the plaintiff to the defendant, for the defendant would be bound to the plaintiff, were his promise entirely ex gratia as to Fowble, and though upon that promise no action would lie against him by Fowble. A consideration, it should be remembered, is constituted by any damage, or any suspension or forbearance of the plaintiff's right, or any possibility of a loss occasioned to the plaintiff by the promise of another, and such promise will be binding, although no actual benefit accrued to the party undertaking. So in the case at bar; had the fact been that the defendant was to receive no benefit, he would still have been bound by his promise. Fillans vs. Mierop, 3 Burr. 1673. 1 Saund. 211. b. 2 Saund. 136. The cases of Egerton vs. Mathews, 6 East, 307, and Sears vs. Brinks, 3 Johns. Rep. 210, were relied on as confirmatory of the doctrine of Waine vs. Warlters. Egerton vs. Mathews occurred on the 17th section of the statute, which requires a memorandum of [**11]  the bargain, signed by the parties to be charged. Here the court held that the bargain was sufficiently explicit, though no consideration was expressed, which they considered would not be the case had the word agreement been used, as was the case in Waine vs. Warlters on the 4th section. This case is considered to have no application whatever to the case at bar, and if attended to will be found not a little absurd in its consequences. The case of Sears vs. Brinks is still more harmless than the preceding two. It occurred on the 11th section of the statute of frauds of New York, which corresponds with the 4th clause of the 4th section of the statute of frauds of 29 Car. II, which relates to the sale of lands. On the memorandum in that case it was held, that the action was not maintained, as the consideration does not appear on the face of the writing. Here the paper appears to contain no consideration for taking Peter Newkirk's bargain, but none was necessary. This case appears to be subject to the absurd conclusion before noticed, as resulting from Egerton vs. Mathews. For this case extends the doctrine of Waine vs. Warlters beyond the 1st and 2d clauses of the 4th section, to which [**12]  Mr. Roberts holds it to be confined; whereas it is manifest that the 4th clause, which relates to land, and the 17th section, the sale of goods, can never require any other memorandum than such as dissolves a bargain for the purchase and sale of land or goods. This case, then, of Sears vs. Brinks, has no application, if it be considered that the memorandum discloses no consideration. If it does disclose a consideration, viz. money for the purchase of land, it, like the case of Egerton vs. Mathews, has disclosed all the consideration which the statute could demand, even if the sections all used the word agreement. In fine, it may be said, that all of the cases, on this doctrine, which have occurred on any other sections or clauses of the statute, than the 1st and 2d clauses of the 4th section, have gone much beyond the level of the case of Waine vs. Warlters, and at the same time when there is not half the necessity for particularity in this respect that there is in cases occurring on the above mentioned two clauses. And it may also be further said, that in all of the cases which have occurred even on these two clauses of the 4th section, the memorandums will be found to contain no [**13]  consideration whatever, and consequently not parallel with the case at bar, which does express a consideration. These cases, so much relied on by the counsel for the appellant, being removed out of our way, on the ground that they have no application to the case at bar, let us gratia argument inquire, whether the cases themselves be of undoubted authority. The case of Waine vs Warlters is the fountain of this doctrine. It has been at various times doubted, qualified, extended, restricted, praised, censured and denied. The case of Stadt vs. Lilt, 9 East, 348, is considered to be a clear qualification of the generality of the doctrine of Waine vs. Warlters. The court there held the plaintiff to be entitled to recover. But the case of Waine vs. Warlters has been objected to still further; for in Minet Exparte, 14 Ves. 183, it is considered of no weight or authority whatever. From the preceding observations it may be briefly stated, that the case at bar stands unaffected by the cases relied on by the counsel for the appellant; and further, that if it came within the very letter of these cases, they are themselves of very questionable authority. The observations on this third objection [**14]  may be closed by a few observations on letters of credit. Letters of credit were well known to the commercial world long anterior to the Stat. 29 Car. II. From the enactment of this statute to the year 1804, their validity, in their ordinary phraseology, was never questioned. Soon after the case of Waine vs Warlters, it was perceived that letters of credit might be affected by the doctrine of that case, for in no instance do they state the consideration on which the request is made. In the case of Stadt vs. Lill, the court was obliged to qualify the doctrine of Waine vs. Warlters, and in Minet Exparte to disregard it. So likewise in Grant vs. Naylor, 4 Cranch, 224, the letter of credit expresses no consideration. But the court would not listen to the doctrine of Waine vs. Warlters, nor would they harbour a doubt as to the sufficiency of the written engagement, on any ground arising out of the Statute of Frauds. So also Eddowes vs. Niell, 4 Dall. 133. Robbins vs. Bingham 4 Johns. Rep. 476. Now what is the consideration which sustains all of these collateral undertakings? The sole consideration is the delivery of the goods or money to the writer's friend. So in the case at bar, all the [**15]  consideration which is required does appear on the paper, viz. the forbearance to sue the writer's friend Jacob Fowble, and the giving of him further time to pay the debt.

4. This objection being last, we certainly consider it the least. It is of so little plausibility even, that we scarce know how to reply to it. The statute speaks of agreements, promises, undertakings, bargains, but not of the execution of these agreements, &c. Were the execution of these agreements required to be evidenced by a writing, more would be demanded than the statute calls for. The statute requires written evidence only as to the existence of a consideration; the execution of this consideration often lies in verbis, and may always be proved by parol. In the case at bar Nicholson, Ch. J. observed, that "the consideration being executory, and a precedent condition, must be proved by the plaintiff, for although the consideration must not lie in verbis, the performance of this consideration may be proved by parol evidence." The phraseology of the defendant's letter should have put an end to every doubt. He writes to the plaintiff to do an act in favour of his friend Fowble, and prejudicial to the plaintiff.  [**16]  Without searching for any consideration de hors the letter, we find all the requisite consideration; for it is quite sufficient that by his promise, the plaintiff has subjected himself to the "possibility of a loss;" to "any damage," or "suspension or forbearance of his right." The cases of Nerot vs. Wallace, 3 T. R. 24, and Pullin vs. States, 2 Hen. Black. 312, are fully in point. It is at once conceded, that it is just as necessary that a sufficient consideration should exist for a written promise, since the statute, as before. The common law always required a consideration; the statute adds as a requisite evidence in certain cases, that the promise, &c. should be in writing. Was not forbearance a good consideration prior to the statute? Certainly; for if C had requested A to forbear to sue B, and A had forborne, this was a valid promise at common law. 1 Roll's Ab. 27, pl. 49. And if such a promise is now made in writing, it is good. King vs. Wilson, 2 Stra. 873.

The present memorandum satisfies every requisition of the statute--for 1st. It is in writing, and has sufficient certainty to constitute a promise. 2d. It is signed by the party charged. 3d. The consideration is manifest [**17]  on the face of the paper. 4. If not, it still materially differs from Waine vs. Warlters, and all confirmatory cases--as they contain a mere nude undertaking. 5. It has all the reciprocity that the law requires. 6th. The consideration is evidenced in writing, and the execution need not be. In nearly every case the consideration will be found to be executory, and no case can be found which sanctions the distinction, in this respect, between executed and executory considerations.  

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

OPINIONBY:
BUCHANAN 

OPINION:

 [*328]  BUCHANAN, J. delivered the opinion of the court. The question raised in this case is, Whether the letter from the defendant below to the plaintiff, of the 16th of September 1806, is such an agreement as will, under the statute of frauds, sustain an action against the defendant for the amount of Fowble's note, Fowble having failed to pay it? Of which no doubt is entertained.

 [*329]  An agreement to pay the debt of another must be in writing, signed by the party to be charged therewith. There must be a consideration for the promise, and that consideration must be set out in the agreement, and cannot [**18]  be the subject of parol evidence. The absence of either of these requisites to a good agreement, under the statute would be fatal; but here neither is wanting. The letter to the plaintiff is signed by the defendant; the renewal of Fowble's note for $ 292, is the foundation of the guarantee, and is a good and sufficient consideration, and that consideration appears on the face of the writing. When the renewal took place, the consideration attached, and the liability of the defendant commenced. And whether Fowble's note was renewed or not, was a matter proper to be left to the jury on the evidence in the cause.
JUDGMENT AFFIRMED.  

13 of 22 DOCUMENTS 

BARNEY VS. SMITH.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

4 H. & J. 485; 1819 Md. LEXIS 10 

June, 1819, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court. Assumpsit brought on the 17th of July 1809, by the plaintiff, (now appellee,) as surviving partner of S. & J. Smith, against the defendant, (the appellant.) The declaration contained counts for money had and received--for money laid out and expended, and on an insimul computassent. All these promises and accountings are stated to have been to and with S. & J. Smith, in the life-time of the said J. The defendant pleaded non assumpsit, non assumpsit infra tres annos, and actio non accrevit infra tres annos. General replication to each plea and issue.

1. At the trial the plaintiff gave in evidence, that he, together with John Smith, deceased, was the owner of two American ships called the Sidney and the Pomona, which in the year 1794 were detained in France by the French government several months; that for this detention, the French government, on the application of the defendant, made in the name and on the behalf of the plaintiff and his said partner, allowed to them the sum of 39,330 livres current money, of France, and ordered it to be included in a general balance of 156, 105 livres 16 sous and 9 deniers, the residue being due to the defendant [**2]  on other accounts; that for this general balance the said government caused to be issued and delivered to the defendant a transferrable certificate of debt in his own name, which he received and sold at a discount of 50 p c. and converted the proceeds to his own use. The defendant then read in evidence a latter from the plaintiff to Albert Gallatin, Secretary of the Treasury of the United States, dated Baltimore, June the 20th 1804: "In a letter I received from you some time past, you inclosed a note of claims substantiated by Cap. Harney in the French Bureau, and submitted to the American commissioners--the first item of which, to wit, ls. 156, 105 16 9, you say is claimed in my name, and in the name of other shippers of flour under contract with Fauchet. I owe it to myself to state, that I have no claim whatever against the French nation on that account--that I have been fully paid for the contract alluded to--and further, that I never have authorized any person to claim for me. If recovered, I hereby disclaim every pretension whatever thereto." This letter had been furnished to the defendant by the plaintiff. The plaintiff thereupon, in order to explain the letter, by shewing what [**3]  was the tenor of the note therein referred to, produced the following note or memorandum in his possession, and proved to be in the handwriting of Albert Gallatin, and offered to read it to the jury: "Extract from the list of American claims against the French government, supposed to be proved by the convention.

________________________________________________________________________________
2d year,	Fructidor, No. 40, Joshua Bar-	
	   ney--Flour delivered at Bor-	
	   deaux,	156,105  16  9	
 Decree of the 29th Germenal 16 year,	
5 year,	Floreal 115. Joshua Barney for	
	   Bentalou, balance of supplies	
	   at Cape Francois,	695,550  10	
Do. do. do. balance of a bill from St.	
Domingo.	 15,392	
6 year,	Germenal. The Bungtall, Joshua	
	   Barney, freight of a ship,	 31,560	
	Ls.	898,608   6   9."	
________________________________________________________________________________

But the defendant objected to the reading of this note for the purpose for which it was offered. This objection the Court, [Nicholson, Ch. J.] overruled, and permitted the note to be read. The defendant excepted.

2. The plaintiff then offered in evidence an award and settlement, made by the proper officers of the French government, whereby was awarded to the defendant, as agent of the [**4]  plaintiff and J. Smith, for demurrage due by the French Republic to them on the ship Pomona, the sum of 21,850 livres, and the sum of 16,800 livres for demurrage on the ship Sidney. He also proved that Paul Bentalou, as agent of the defendant, on the 9th of April 1803, sold the said two claims against the French government to Robert Fulton, at a discount of 50 per cent, and received the amount of the purchase. He further read in evidence a letter from himself to the defendant, and the defendant's answer to the same, the first dated Washington the 19th of February 1805, viz. "On examining a list furnished by the commissioners at Paris to the department of state, I find that an account in your favour, originating in the year 2 of the French Republic, had passed the board, and was then before the minister of France for his decision, before which was known it was deemed improper to carry out the amount. On further inquiry I am informed that one item of that account is for arbitrage for detention of ships which brought the flour, 14,980 bbls. alluded to in a previous item, at 89.430 livres. The account is dated Paris an. 10, and signed by you. I presume the bills will soon begin to arrive [**5]  from France for such claims; I will therefore be obliged by your forwarding to me a statement of the proportion due to the Pomona and Sidney, which ships have been employed in carrying that flour, for their detention, so that I may know the precise amount due to S. & J. Smith. I observe that an interest of 6 per cent will be paid thereon from the 8th Fructidor, an. 4. Your answer will greatly oblige yours," &c. The answer, dated Baltimore, the 21st of February 1805, is as follows, viz. "You wrote on the 29th of November 1803, on the same subject as your letter of 19th inst. In my answer to your first I gave you every information I had, which answer you sent forward to your friends at Paris, of course must have received a further statement from them. In answer to your last I have to inform you, that I have never received any information from my friends in Paris, that any claim of mine had passed the American board, but on the contrary, that my claims had been rejected by them, and I suppose from the information of some zealous partizans in this country to the executive, who said my claim had been paid, and was unfounded, &c. If any claim of mine has been allowed as due in the year two,  [**6]  no doubt it has been sold previous to the treaty of 1803, as I gave such orders, and which I mentioned to you in mine, in answer to your letter of the 29th November 1803. But, Sir, I had no claim for 89,430, it was for 156,105 16 9, which sum was mentioned to the executive by the commissioners, as will fully appear by your letter to the secretary of the treasury, dated the 20th January 1804, (a copy of which I have, and to which I now refer,) that letter also explains what claims you can have on the above sum, if ever received by me. Whenever I receive a full statement from my friend in Paris, I shall not hesitate to communicate it to any person concerned." The defendant thereupon proved, that the French liquidation in the month of January 1806, upon a revision of the said claims confirmed the same, and that they could not be paid until they had been confirmed by the French liquidators. And he further proved, that the said John Smith died in the month of June 1805. The plaintiff then offered evidence to prove, that when he wrote the before mentioned letter to Albert Gallatin, he was wholly ignorant that any claim for the demurrage aforesaid, or any part thereof, was included in the [**7]  said sum of 156,105 livres 16 sous and 9 deniers, mentioned in the aforesaid note. The plaintiff also, to prove that within three years next before the time of bringing this action the defendant made a new promise to pay the money so by him received to the use of the plaintiff, gave in evidence by a competent witness, that in the month of June 1809, there was a suit depending between the defendant, and one John Hollins, in the court of chancery of this state, in which Hollins claimed from the defendant, among other things a certain sum for the demurrage of the ship Adeline and brig Moggy, which had been allowed by the French government, at the same time and in the same manner with the allowance for demurrage on the Pomona and Sidney, and was alleged by Hollins to have been received by the defendant at the same time, and in the same manner, with demurrage on the Sidney and Pomona; that in the said suit in chancery the plaintiff was examined as a witness for Hollins, under a commission from the court of chancery, to prove the receipt by the defendant of the said demurrage on the Adeline and Moggy. That the defendant being present at that examination in the month of June 1809, the plaintiff [**8]  said to him, I suppose you have concluded that I have given up my claim against you, meaning as the witness then and ever since believed, the claim of the plaintiff and John Smith for the aforesaid demurrage on the Sidney and Pomona. To which question the defendant, without in any manner denying the debt, or refusing to pay it, replied No. I suppose you are waiting the result of the suit between Mr. Hollins and me, meaning, as the witness understood and believes, the claim of Hollins for the demurrage of the Moggy and Adeline aforesaid; and also referring, as the witness understood and believes, to the question depending between the defendant and Hollins, whether Hollins should recover from the defendant the full sum allowed as aforesaid for demurrage, or the sum only which the defendant had received from the sale. Whereupon the plaintiff then said to the defendant, "If you would meet me, there could be no difficulty in settling on amicable terms." To which the defendant replied, "No, I have had enough of arbitrations, and now I want equity." And also for the purpose last aforesaid, the plaintiff produced and read in evidence, by the consent of the defendant, the following letters [**9]  to him from the plaintiff, concerning the said demurrage for the Sidney and Pomona, dated the 25th of January 1809. "In March I mean to make a final settlement of the affairs of Saml. & John Smith. I will thank you for your account of demurrage of their ships due by the government of France, and which you mentioned to me in the court house had been settled, and must be paid for. I am informed of the amount paid to your order under the Louisiana cession, but I have no account of the charges you may have paid thereon, nor of the commissions you are entitled to for your compensation." And also read in evidence, for the same purpose, the following letter from the defendant to the plaintiff, in answer to the foregoing one, dated the 27th of January 1809: "I have received your letter of the 25th instant. In answer refer you to the letter of the 20th June 1804, to Mr. Gallatin, Sec'ry. of the Treasury, for any claim you have against me under the Louisiana treaty of cession." And also, for the same purpose gave in evidence, that in the month of March or April 1807, during a trial between the defendant and the said Hollins in Baltimore County Court, in which Hollins claimed from the defendant,  [**10]  by way of set-off, the full amount of the sum allowed by the French government for demurrage on the Adcline and Moggy as aforesaid, the defendant did acknowledge and admit that he had received the aforesaid liquidated certificate for the sum allowed as aforesaid for demurrage, including the allowance as aforesaid for the said Sidney and Pomona, and had sold the said certificate at a discount of fifty per cent. as above set forth, and had received the purchase money, and that the parties respectively entitled to the said demurrage had a right to receive from him their respective proportions of what he had actually received, but alleged that it was hard for Hollins to exact from him the defendant the full nominal amount of the said certificate. The defendant then moved, the court to direct the jury, that upon the whole of the evidence, if they believed the same, the plaintiff was not entitled to recover. Which direction the court refused to give. The defendant excepted; and the verdict and judgment being against him, he appealed to this court.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

In assumpsit by S S, as surviving partner of S and J S, the declaration stated the promises to be to S and J S, in the life-time of J S The act of limitations was pleaded, and to take the case out of that act, evidence was offered of a promise made to S S, after the death of J S. Held, that the evidence was sufficient to avoid the statute; and that there was no necessity to declare specially on the promise to the plaintiff, as surviving partner.

The case of a surviving partner is distinguishable from that of an executor or an administrator. The right and remedy are united in him; the original promise made to him and his deceased copartner, still exists, and the right of action with the remedy survives to him. The acknowledgment to the surviving partner saves and preserves the remedy in the survivor, and avoids the bar of the act of limitations. It does not create a new assumpsit, but is a saving of the remedy on the original promise.

An acknowledgment of the debt, an offer to come to a settlement, or to refer to arbitrators, will take a claim out of the act of limitations. Per Johnson, J.

Where the defendant had read in evidence a letter from the plaintiff to A G, referring to a memorandum which A G had sent to the plaintiff, such a memorandum may be read in evidence by the plaintiff for the purpose of explaining the letter.  

COUNSEL:
Williams, for the Appellant. This suit is brought for money alleged to have been received by the defendant, of the French [**11]  government, for the use of the plaintiff and John Smith, in the year 1803. It is stated in the record, that it was proved John Smith died in June 1805. The plaintiff, as the surviving partner, to avoid the plea of limitations, relied on an acknowledgment made by the defendant to him in the month of June 1809; and on another acknowledgment made by him to the plaintiff in the month of March or June 1807. It was contended, on the part of the defendant, in the county court, that these acknowledgments were not sufficient to defeat or prevent the operation of the plea of limitation; but that court decided otherwise. It is not meant to be contended here, that the acknowledgments of the defendant, as proved, might not have been sufficient, under a different form of declaration, and with other counts, to prevent the operation of the statute of limitations; but it is insisted that they were not sufficient to produce that effect in the present suit, and framed as is this declaration. The assumptions in the declaration are stated to have been made to Samuel & John Smith, in the life-time of John, and the suit is brought by Samuel Smith as surviving partner. The plaintiff, in order to let in the [**12]  acknowledgment of the defendant before stated, ought to have adapted his counts to the nature of his proofs. This doctrine is incontrovertibly shewn, and clearly illustrated, by the law in relation to acknowledgments made by or to an executor or administrator, as such, and assignees of bankrupts or insolvents, as such. If a plaintiff declares on promises made by the intestate, and the defendant as administrator pleads the statute of limitations on which issue is joined, a promise made by the defendant as administrator will not be competent evidence to resist the limitation, but the plaintiff should have declared on an insimul comput asset with the defendant as administrator; that is, he should have declared that he accounted with the defendant as administrator of and concerning a debt due from the intestate to the plaintiff, and upon that accounting the defendant as administrator was found indebted to the plaintiff, and being so found in arrear the defendant as administrator promised to pay. So if the administrator is plaintiff, and declares on promises made to the intestate, and the defendant pleads limitations, a promise or acknowledgment by the defendant to the administrator within [**13]  3 years, will not take the case out of the statute; but the plaintiff ought to have declared that the defendant accounted with the plaintiff as administrator of and concerning a debt due from the defendant to the intestate, and upon that accounting the defendant was found indebted, and being so found indebted promised to pay the plaintiff as administrator. Or in the foregoing instances the declaration may run (in the first case put,) that the intestate being indebted, the defendant as administrator promised to pay, or (in the second case put,) that the defendant being indebted to the intestate, promised to pay to the plaintiff as administrator. So here by analogy it should have been declared that the defendant accounted with the plaintiff, surviving partner of John Smith, of and concerning a debt due from the defendant to Samuel and John Smith, in the life-time of John, and being on that accounting found so indebted, he promised to pay to the plaintiff, surviving partner as aforesaid; or, that the defendant having received money for the use of the said Samuel and John Smith, in the life-time of John, promised to pay to the said Samuel Smith, surviving partner of John, since the death [**14]  of John. It will be observed that John Smith having died in June 1805, and the suit having been instituted in July 1809, no promise or acknowledgment made by the defendant to Samuel and John Smith, in the life-time of John, could possibly have been made within three years of the institution of the suit, and the declaration is obliged to assert what was impossible in fact, so as to appear to take the case out of the statute of limitations, that the promises were made in August 1806 to Samuel and John Smith, although John Smith had at that date been dead 14 months. There are many authorities, which establish these positions. In 2 Saund. 63, d, (note 6,) it is laid down, (that which is a consequence of the position contended for,) that if the assignee of a bankrupt declare that the defendant was indebted to the bankrupt, and promised the plaintiff, the assignee, to pay him, the plea of the statute of limitations, that the action did not accrue to the bankrupt within 6 years, is no answer to the declaration, which states that the promises were made to the plaintiff assignee; and if it were a good plea it would preclude the plaintiff from giving evidence of such promise. So where a similar [**15]  action was brought by the assignees of an insolvent debtor, for a debt due to the insolvent upon promises to pay the plaintiffs, as assignees, a plea of the statute, that the action did not accrue to the insolvent, is no answer to the declaration. This note refers to Kinder vs. Paris, 2 H. Blk. Rep. 561. In the same note to Saunders, 63 (f.) the law is laid down in a manner more precisely applicable to this case. It states, if in assumpsit by an executor all the promises are laid to be made to the testator in his life-time, the defendant pleads he did not promise within 6 years, and the plaintiff replies that the letters testamentary were sued out within 6 years of the institution of the suit, so that 6 years had not elapsed when the action accrued to the plaintiff as executor, the replication is bad; because the statute run from the time the action accrued to the testator. So where in assumpsit by an executor, on a contract made with the testator, all the promises in the declaration are laid to be made to the testator; and the defendant pleads the statute of limitation, the plaintiff cannot in his replication set forth a promise made to himself, without being guilty of a departure,  [**16]  any more than he can in such case give evidence of a promise made to himself within 6 years, upon an issue joined on the plea of the statute of limitations. Saunders refers to a long list of authorities of the highest character, and an intimation in Heylin vs. Hastins, Carthew, 471, to the contrary, which is asserted not to be law. So where to a declaration in assumpsit by the assignees of an insolvent debtor, for money due before his insolvency, stating all the promises to have been made to the plaintiffs, the defendant pleaded that he did not undertake and promise, in manner and form as the plaintiffs declared, he cannot rejoin that the cause of action first accrued to the insolvent, before the plaintiffs became assignees, and that 6 years had elapsed after the cause of action first accrued to the insolvent, for that rejoinder would be a plain departure from the plea. Kinder vs. Paris, 2 H. Blk. Rep. 562, (note a). Thus it will be seen by all these decisions, that it is necessary for the plaintiffs, who bring their suits in a representative character, to lay the promises and assumptions to be made to themselves, (where so much time has elapsed since the cause of action first accrued [**17]  that the statute of limitations attaches,) if they rely on such promises or acknowledgments to take the cases out of the statute. Moreover, the authorities would never speak of promises and assumptions made to the plaintiff's who sue in a representative character, if they could maintain suits, and counteract the operation of the statute of limitations, by proving promises to have been made to them in their representative character, although the declaration should contain no other counts than upon promises made to the original parties. In 1 Chitty's Plead. 204, it is stated--"That an executor or administrator may declare as such for money paid in that character, and may join such count with counts on promises to the testator or intestate. So money had and received by the defendant to the use of the plaintiff as executor, on an account stated with him as executor of monies due and owing to the testator, or to the plaintiff as executor, may be joined with counts on promises to the testator or intestate." And "where six years have elapsed since the death of the testator or intestate, or it may on any other account be material for the plaintiff to avail himself of a promise or acknowledgment [**18]  since the death, counts should be introduced in the declaration on promises to the executor in that character, for otherwise, such promise or acknowledgment cannot be given in evidence." Ibid 204, 205, 343. Sarell vs. Wine, 3 East, 409. Hickman vs. Walker, Willes 29. In pursuance of these principles, maintained by incontrovertible authorities, Chitty, in his 2 vol. 46, gives the forms of the counts proper in such cases, with reference to the instance of a surviving partner who sues for a debt due to him in that right. Before introducing the counts on promises to the surviving partner, Chitty expresses himself in these remarkable words, shewing the application of the principles in cases of executors or administrators to cases of surviving partners. "If the debt be considerable, or the deceased partner has been dead six years, or it may on any other account be advisable for the plaintiff to avail himself of a promise or acknowledgment to him since the death of his partner, insert the counts," &c. and referring to Sarell vs. Wine, 3 East, 409. In Hickman vs. Walker, Willes, 29, the opinion of the court concludes in these words: "Because all the promises in the declaration are laid to [**19]  be made to the testator, an executor cannot give evidence of the promise to himself within six years; and if he cannot, setting forth a promise to himself in his replication, as the executors have done in the present case, is a departure in pleading, and for that reason also the replication is not good." In Secar vs. Atkinson, 1 H. Blk. Rep. 105, the court say, it is a common manner of declaring against executors and administrators, to save the statute of limitations, that executors and administrators promised themselves to pay, &c. In Beard vs. Cowman, 3 Harris & M'Henry, 153, it was decided by the general court, that evidence that the executor had promised to the plaintiff executor, would not support a declaration on promises to the testator. The forms of counts on promises by executors and administrators in 1 Harris's Ent. 161, 162, 179, show the practice in this state. In Tom vs. Goodrick, 2 Johns. Rep. 213, it was held that the promise must be stated to have been made by the partner living at the time, alone; if stated to be by the deceased partner, and his survivors, it will be fatal. 3 Chitty's Plead. 19, 20, gives the forms of declarations against a surviving payee, and a surviving [**20]  maker of a promissory note.

As the objections urged against the opinion of the court below in the second bill of exceptions, are considered to be fatal to the plaintiff's recovery, it is deemed wholly unnecessary to say any thing upon the first bill of exceptions.

Winder, for the Appellee. The first bill of exceptions seems to be abandoned by the appellant's counsel; but to the second, it was urged that proof was admitted which does not apply to the issue. It has been decided that it may be left to the jury to ascertain whether a promise had been made so as to take the case out of the act of limitations. 1. In this case there was sufficient proof to take the case out of the statute. It was not necessary that it should be an express promise. Lloyd vs. Maund, 2 T. R. 762. Lawrence vs. Worrall, Peake's N. P. 93. Ball. on Lim. 188, 190.

2. The principal question is, whether a promise or acknowledgment made since the death of one of two partners, can sustain a case where the promise is laid to have been made to both? No authority has been produced to show that an action like the present cannot be maintained. If it could not, there must be such cases in the books. The practice [**21]  of declarating on promises by executors, &c. seems to have been only applicable as to executors, administrators and assignees, of insolvents, and not to actions by surviving partners. Executors, &c. appear in a representative character, having nothing to do with the cause of action. But it is different as to a surviving partner, where the promise to him revives the original claim. The right of action is the same, and the surviving partner enforces the right, and he is not in the predicament of an executor, &c. who comes in by assignment, &c. or by transfer of law, as where a promissory note by endorsement is transferred, and the endorsee receives the legal right. Suppose an action on a promissory note endorsed by A to B, and the act of limitation is pleaded--an acknowledgment to A would enable B to recover. An acknowledgment by the party restores the right of action which was before taken away. No new consideration is necessary to take it out of the statute of limitations--a simple acknowledgment revives the original consideration, and restores the party to his original right. The statute does not extinguish the debt, but bars the remedy. Ball. on Lim. 188. In the case before the court [**22]  the plaintiff was the original creditor, and the whole interest at law devolved on him. The acknowledgment relied on is, that the defendant received the money for the plaintiff and J. Smith, that admission removes the bar of the act of limitations. The cases cited by the counsel for the appellant, relates to executors, administrators and assignees, except Tom vs Goodrick, 2 Johns. Rep. 213, which was a case against a surviving partner, and to involve a person as a partner, his deceased partner must be alive at the time when the debt was created. It is incumbent on the counsel for the appellant to show that the cases of executors, administrators and assignees, apply to a surviving partner. The precedents in Chitty are no authority, and he only advises the change out of abundant caution.

Pinkney, in reply. There are two questions--1. The sufficiency of the acknowledgment without reference to the pleadings. 2. Its sufficiency in connexion with the pleadings. As to the first, the acknowledgment is not sufficient if the pleadings are correct. The statute of limitations is considered almost as a dead letter. The courts seem to interpret it so as to evade its operation. They have said [**23]  that an acknowledgment will take the case out of the statute, and although it was not a new promise, yet it implied a new promise. The tide is now setting the other way. Courts are now more strict, and will not go further to evade the statute, and was the question to be decided now for the first time, a different rule would be established. 2. The acknowledgment is not sufficient under the pleadings. What was the issue on the plea of limitations? It was that the defendant did assume within three years, in manner and form as stated in the plaintiff's declaration, which was that he assumed to pay the plaintiff and J. Smith, in the life-time of J Smith. If it had been expressly proved that the defendant had promised to pay the plaintiff, would that be the promise as laid in the declaration, and as the plaintiff took it upon himself to prove? But no express promise is proved--there was simply an acknowledgment that a debt did exist. It was an implied promise, and the plaintiff was bound to prove that which he would be bound to prove if the promise, on which the cause of action is founded, was expressly proved. The plaintiff was not in a better situation than if the promise had been made [**24]  more than three years. A promise to a dead man is of no effect. A promise to the plaintiff cannot by relation be a promise to S. and J. Smith; if it can, why cannot a promise to an executor by relation be a promise to the testator? Here the declaration counts on one promise, and the proof is as to a different promise. This will apply as well in the case of an executor as of a surviving partner. The surviving partner sues no more in his own right than an executor does. He comes in a representative character, although he has an interest. He does not claim to be entitled exclusively for himself, but as a surviving partner representing the firm. If he recovers, he recovers under an accountability in like manner as an executor. The representatives of the deceased partner may call on him and make him account. The predicament of a surviving partner, in the eye of reason, is identically the same with that of an executor. The doctrine of relation is wholly inadmissible, that the acknowledgment should relate to the original promise. Here a promise is laid as made to S. and J. Smith, which the defendant denies; but if made, it was not made to S. and J. Smith, within three years. The proof is [**25]  that the defendant acknowledged the debt to S. Smith, and that when the acknowledgment was made J. Smith was dead. Is this maintaining the issue joined? The case cited are of executors, &c. and that where a promise is made to the executor, there must be a count on that promise to prevent limitation from barring. In Green vs. Crane, 2 Ld. Raym. 1101, the defendant owned the debt to the executor, and promised him to pay the debt which was due to the testator. There was no count on the promise to the executor; and on the plea of limitations, it was held that the promise was not within the issue, and could not be given in evidence. The case of an executor may be distinguished from that of a surviving partner in point of fact, but not in principle. They are both in representative characters; and if not in representative characters, they are not the persons to whom the promise was made. A promise made to one man is not a promise made to two. But it is said, that we have produced no case directly in point. It may be asked, why no case is produced showing that the decision has been otherwise? It may be answered, that ever since the question was settled as to executors, &c. the case of a surviving [**26]  partner has been considered as settled, and the forms, as to surviving partners, have been made to conform to those adopted in cases of executors, &c. Elementary writers are to be regarded, and Chitty, if alone, would be high authority; but without his authority the case is clear.  

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

OPINIONBY:
CHASE; JOHNSON 

OPINION:

 [*495]  CHASE, Ch. J. delivered the opinion of the court. The court are of opinion, that the act of limitations does not operate to extinguish the debt, but to bar the remedy. The act of limitations is predicated on the principle, that from length of time a presumption is created that the debt has been paid, and that the debtor is deprived of his proof by the death of his witnesses or the loss of receipts. It is the design of the act of limitations to protect and shield debtors in such a situation; and consistent with this principle, and this view, the decisions have been made, that the acknowledgment or admission of the debtor will take the case out of the act of limitations, because if the money is still due and owing, the defendant has not suffered from lapse of time, nor has any inconvenience resulted [**27]  to him therefrom.
The case of a surviving partner is distinguishable from that of an executor. An express promise made to an executor creates an assumpsit to him, and is founded on the antecedent consideration of a debt due to the testator; and a count in the declaration must be framed on it, and the proof must correspond with and be adapted to it. The money, when recovered, will be assets in the hands of the executor, and he will be accountable for it. A surviving partner has a right to all the effects belonging to the partnership, and to receive, sue for and recover, all the debts due to the partnership. The right and remedy are united in him, the original promise made to him, and his deceased copartner, still exists, and the right of action with the remedy survived to him. The acknowledgment to the surviving partner saves and preserves the remedy in the survivor, and avoids the bar by the act of limitations. It does not create a new assumpsit, but is a saving of the remedy on the original promise. The surviving partner is accountable to the creditors of the firm, and to the representatives of the deceased partner.
The court are of opinion, that the judgment of the court [**28]  below be affirmed on both bills of exceptions.
JOHNSON, J. This was an action on the case for money had and received by the defendant below, (the appellant,) for the use of the plaintiff, in which the plaintiff recovered.
The defendant pleaded the general issue, and the act of limitations, on which issues were joined. Two questions arise on the exception relied on. First, was the evidence sufficient to establish the claim on the general issue? On the argument this ground was not much relied on by the appellant; and on an examination of the proof produced by the plaintiff, the court are satisfied that it was fully adequate to sustain the plaintiff's claim on the general issue.

 [*496]  The second question arising is, whether such declarations or admissions made by the defendant to Samuel and John Smith, within three years before a suit brought by them, would, if made to Samuel after the death of John, enable Samuel, the survivor, to recover the partnership debt?
The act of limitations was never intended to prevent the recovery of debts really due, but to protect persons from old claims when the evidence of their discharge, from length of time was supposed [**29]  to have been lost.
The courts of justice in England, and in this state, considering, and correctly considering, such to have been the object of the statute, have availed themselves of any declarations or admissions on the part of debtors to remove the bar to the recovery presented by the act of limitations.
The decisions of the courts, on the offers and admissions of debtors, made within the time presented by the act of limitations, that the case was taken out of that act, do not go on the ground that a new cause of action was thereby created, or that a new promise was made to pay the old debt. A promise made within the period prescribed by the act of limitations, will authorize a recovery of the original debt, and in that instance, and in that alone, would the jury be justified in finding a verdict for the plaintiff on the issue joined on the act of limitations, if the position contended for on the part of the appellant was correct, that it is more a question of fact than of law; and that therefore a promise made to Samuel Smith, the surviving partner of John Smith, could not support the issue alleging such a promise to have been made to Samuel and John Smith [**30]  .
If nothing but a promise to pay could revive a debt, or remove the act of limitations, then it would seem to follow that such promise must have been made to the plaintiffs themselves, and a promise to one partner, after the death of the other, would not support the issue on the part of the plaintiff when the act of limitations was pleaded. On the contrary, if a promise to pay is not indispensably necessary to support that issue, then may the plaintiff recover, although the fact of the promise to pay within the prescribed time is not made to appear to the jury.
It is most unquestionably established that an acknowledgment of the debt, an offer to come to a settlement, or to refer to arbitrators, will take the claim out of the act of limitations. Now an acknowledgment of the debt is not a promise to pay, nor is an offer to come to a settlement, or to refer the matter in contest to referees, a promise to pay the claim, nor can they amount to more than this, and that by implication of law, to pay the sum ascertained to be due on the settlement, or the sum awarded. Yet all those acts will remove the bar presented by the act of limitations; for the admission of the debt removes all doubts [**31]  as to its having been discharged, and the offer to come to a 

 [*497]  settlement or reference, impliedly admits the party to be in possession of the evidence and documents necessary for such adjustments.
But it is contended, on the part of the appellant, that before the surviving partner can recover on promises or admissions made to him, he must insert a special count relying on the promise made to himself; and it is contended, on the part of the appellant, that an executor could not recover a debt due to the deceased, relying for such recovery on a promise made to the executor to take it out of the act of limitations, without a special count on such promise, and therefore the surviving partner, before he can recover, must also specially declare on the promise made to him.
It appears to me that the decisions made in the case of executors must have been founded on a supposed necessity that the proof should correspond with the issue, to wit, the promise to the deceased. The case before the court is not that of an executor suing to recover a debt due to the testator, relying on a promise made to himself, without declaring on it, to avoid the act of limitations. We have seen, that [**32]  the bar presented by the act of limitations may be removed without a new promise, and that any declarations made by the defendant, from which it is to be inferred that the demand is just, or that he is in possession of the documents to come to a settlement, are sufficient to remove the act of limitations; I am therefore of opinion that the admissions made in this case, although after the death of John Smith, were sufficient on the issue joined on the act of limitations.
JUDGMENT AFFIRMED.  

14 of 22 DOCUMENTS 

HASLETT'S Adm'r. D. B. N. vs. GLENN.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

7 H. & J. 17; 1825 Md. LEXIS 6 

December, 1825, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court. This was an action of trover, brought on the 12th of March 1822 by James Smith, administrator de bonis non, with the will annexed, of William W. Haslett, (now appellant,) against the appellee, (the defendant below.) Not guilty, and action non accrevit infra tres annos, were pleaded. Issue was joined to the first plea, and the general replication and issue to the second. The facts of the case sufficiently appear in the statement of the judge, who delivered the opinion of this court.  

DISPOSITION:
REVERSED.  

HEADNOTES:

An executor cannot make the property of his testator his own, by paying the debts of the testator out of his own funds to the amount of the appraisement of his estate.

An executor's having settled an account of his administration with the orphans court, and being charged by that court with the appraised value of the estate according to the inventory, is not conclusive evidence that he had fully administered the effects of the deceased, and that thereby they became his right.

The act of limitations is no bar in an action of trover, where the conversion of the property of a deceased person was before letters of administration were granted to the plaintiff, but at a time when there was no person to assert the rights of the creditors and legatees of the deceased. The statute begins to operate only from the time a right to demand the property vests in some one.

Where land had been purchased and conveyed in trust for a husband and his wife during their joint lives, and the life of the survivor of them, and the crops growing on the land at the death of the husband were sowed or planted by the vendor of the land before he conveyed, such crops, as emblements, survived to the wife under the trust deed, and made no part of the husband's personal estate. But if the land had been sowed or planted by the husband after his purchase, it had been otherwise.  

COUNSEL:
S. J. Donaldson and Belt, for the Appellant, contended, 1. That an executor cannot become the purchaser of the goods and chattels of his testator, nor by any other means whatever acquire a property therein other than as executor; and that if an executor had such power, there was no evidence in the cause to prove an exercise of that power by the executrix, Ann Haslett. 2. That where an executor dies possessed of goods and chattels, the property of his testator, and leaves them unadministered, they immediately, upon his death, vest in the administrator D. B. N. whensoever afterwards administration may be granted. 3. That the sale made by the appellee in [**2]  this cause was an actual conversion, and that it was not incumbent upon the appellant to prove a demand and refusal. 4. That although the administrator D. B. N. is by relation possessed of property unadministered by the executor from the moment of the executor's death, yet that for any injury to the property done, between the time of his death and the grant of administration, the act of limitations begins to operate from the time of administration granted, and not from the time when the injury is done. 5. That upon the death of tenant for life all crops then growing become assets in the hands of his executor.

On the first point, they cited the act of 1798, ch. 101, sub ch. 8, s. 2, 3, 19; sub ch. 14, s. 9. Toller, 238. Conway vs. Green, 1 Harr. & Johns. 151. Scott vs. Burch, 6 Harr. & Johns. 67. Hall vs. Griffith, 2 Harr. & Johns. 483. The act of 1816, ch. 203. 3 Blk. Com. 18.

On the second point--1 Com. Dig. tit. Administration, (B 10) 341. 3 Bac. Ab. tit. Executor & Administrator, (H 1) 58. Anon. Comb. 304. Anon. Ibid 451. Long vs. Hebb, Styles' Rep. 341.

On the third point--6 Bac. Ab. tit. Trover, 677, 679. 1 Chitty's Plead. 78.

On the fourth point--Sewell vs.  [**3]  Hepburn, 4 Harr. & Johns. 393. Hodsden vs. Harridge, 2 Saund. 63, g. (note.) Curry vs. Stephenson, Comb. 311. S. C. 2 Salk. 421. Parker vs. Fassitt, 1 Harr. & Johns. 339. 1 Com. Dig. tit. Actions, &c. (H 6) 221.

On the fifth point--1 Cruise's Dig. 87. The acts of 1798, ch. 101, sub ch. 6, s. 12, sub ch. 7; 1802, ch. 101, s. 2; and 3 Bac. Ab. tit. Joint Tenants, 675, 692. Ibid tit. Executors, &c. (H 3) 64. Latham vs. Atwood, Cro. Car. 515.

Glenn and R. Johnson, for the Appellee, on the first and second points cited 1 Com. Dig. tit. Administration, (B 10) 341. 3 Bac. Ab. tit. Executor, (H) 58. Livingston vs. Newkirk, 3 Johns. Chan. Rep. 318. The act of 1798, ch. 101, sub ch. 15, s. 1. Toller, 252. The act of 1798, ch. 101, sub ch. 8, s. 3, sub ch. 10, s. 1; sub ch. 14, s. 2. Quick vs. Staines, 1 Bos. & Pull. 293. Farr vs. Newman, 4 T. R. 625, (note.)

On the third point--6 Bac. Ab. tit. Trover, (C) 683.

On the fourth point--Sewell vs. Hepburn, 4 Harr. & Johns. 393. The act of 1715, ch. 23.

On the fifth point--the acts of 1798, ch. 101, sub ch. 7; 1802, ch. 101, s. 2; 1807, ch. 136, s. 1. 3 Bac. Ab. tit. Executor, 98. Hambly vs. Trott, 1 Cowp. 373. Toller, 365.  [**4]  1 Com. Dig. tit. Administration, (C 3). 2 Blk. Com. 508.

Curia adv. vult.  

JUDGES:
The cause was argued at the last term before BUCHANAN, Ch. J. and EARLE, STEPHEN and DORSEY, J.  

OPINIONBY:
EARLE 

OPINION:

 [*19]  At this term the opinion of the court was delivered by
EARLE, J. The following is a full statement of the facts of this case. On the 25th of April 1814, Doctor William W. Haslett, late of Baltimore, made his will, and died a few days after. A little previous thereto, he had purchased a plantation of John Heslip, and obtained a conveyance of it from him to John Miller, and his heirs, in trust for the use of himself and his wife, Ann Haslett, for and during their joint natural lives, and the life of the survivor of them, and after the death of the survivor of them, to the use of the heirs of his said wife, forever; and by his will he ratified and confirmed the title to said property to his said wife, her heirs and assigns, forever. The crops growing on the land at the testator's death, were sowed or planted by Heslip. After manumitting his slaves, and giving some small legacies, he bequeathed also to his wife a third of his personal estate, and gave the remaining [**5]  two thirds to his sisters, Elizabeth Ramsay and Mary Hood, forever, and directed the division to be made after the payment of all his debts. He appointed his wife executrix of his will, which trust she accepted, and under the direction of Elias Glenn, esquire, the appellee in this cause, who appears to have acted a kind and 

 [*20]  friendly part towards the doctor and his family, she applied herself to the settlement of his estate. The will was proved on the 14th day of May 1814, and the 4th day of June following, she returned an inventory of his effects, amounting to $ 1970 67. On the 14th of the same month the executrix passed her first account with the orphans court, in which she charges herself with the amount of the inventory, with a debt received of Elias Glenn, of $ 237 34, and with a personal chattel, not included in the inventory, to the amount of $ 6, making an aggregate sum of $ 2214 01, and obtained an allowance for payments, disbursements and commissions, amounting to $ 1615 27, leaving a balance against her of $ 598 74. She does not appear to have done any thing more towards her administration, unless holding possession of all her husband's effects [**6]  may be so considered, until her death, which took place the 12th of September following. She left a will, and by it devised all her property, real, personal and mixed, to her two nieces Willmina and Julian Stewart, their heirs and assigns, forever, subject to and charged with the payment of her funeral expenses, debts and legacies, and appointed her friend Elias Glenn, her executor. He proved her will in the same month of September, and returned an inventory of her estate, including all the articles of her husband's personal estate appraised by her. It is admitted that the same goods and chattels were sold by him at auction soon after, and by his account of sales, returned to the orphans court, it appears they brought the sum of $ 3554 66, overrunning the inventory she returned, with the chattels she accounted for, the sum of $ 1578 93 1/2. In December he passed his first account as executor of her estate, and charged himself with the amount of the inventory returned by him, $ 2796 05, with the difference between the sales and appraisement $ 768 61 1/4, and with cash in his hands $ 98 62 1/2, making the amount of debits $ 3653 29 1/4. He paid funeral expenses, debts, legacies, [**7]  &c. to the amount of $ 2139 13, and having obtained in his account an allowance for them, there was left in his hands $ 1514 16. This sum he charged himself with in his last account, passed at the 1st of December 1819, and reduced it by further payments and disbursements to $ 468 58, which he admitted to be in his hands undisposed of. At the same time he passed a further 

 [*21]  account of the estate of Doctor Haslett, calling it the second account of Ann Haslett, executrix of William W. Haslett, rendered by him as her executor. In this settlement he charges himself with $ 598 74, the balance due on her first account, and is allowed for a payment to the register of $ 1 50, and her third part of her residuum of her husband's estate to the amount of $ 199 03, making together $ 200 58, and leaving no more to be accounted for than $ 398 16. No part of the legacies of the two sisters of the first testator is alleged to be paid, and why they have stood off, and not asserted their rights, does not appear. The appellant, however, who will be accountable to them for their proportion of what he receives, after having paid the debts, if any remain to be paid, obtained letters  [**8]  de bonis non on the estate of William W. Haslett on the 21st July 1821, and brought an action of trover in less than a year thereafter. The appellee, the defendant below, pleaded to it the general issue plea, and that the causes of action did not accrue at any time within three years next before the day of the institution of the suit, to which last plea there is a general replication.
There has grown out of these facts several questions of law, which have been discussed in this court with ability, and now await its decision.
The most important among them respects the situation, in a legal view, of the goods and chattels of William W. Haslett, taken by the executor of his wife into the administration of her estate--Whether at the time of her decease in September 1814, she was possessed of them in auter droit, or had acquired such a right to them, as made them transmissible to her executor? If she had not acquired such a right to them, it is manifest the legatees of the first testator have been injured by the mode of settlement adopted, in the proportion the legatees under the wife's will have been profited by it--the $ 1578 03 1/2, the gains of the second appraisement, [**9]  and sales on the first appraisement, having been taken from one set of legatees, and given to the other. The appellee, we are certain, stood indifferent to them both, and if an error has been made in his settlement, we are perfectly sensible it has proceeded wholly from a mistaken apprehension of his duty. To establish the position that the wife made the property of her husband her own in her lifetime, it 

 [*22]  was contended by the appellee, that she paid the debts of her testator, out of her own funds, to nearly the amount of the appraisement of his estate; that she settled an account of her administration with the orphans court, and was charged by that court with the appraised value of the estate only; and that she had fully administered his effects, and thereby they became her right.
We are of opinion, that neither of the grounds are tenable in this case, and that the position taken is not sustained.
The first is directly opposed to the decision of this court, in the case of Hall vs. Griffith, 2 H. & J. 483, where it is decided in so many words, that the appellant, the administrator de bonis non in that case, had no right to retain the personal estate [**10]  at the appraisement on his paying the debts of the deceased to the amount of the inventory. He had been for many years in the administration of the estate, had overpaid the creditors the amount of the inventory, and considered the property his own, and yet he was compelled, by a decree of the orphans court, sanctioned by the opinion of this court, to sell the negroes, and their increase, with the other property, and account to the representatives for the amount of sales. Ann Haslett lived about four months only after she took letters testamentary, and it is impossible to say in what light she considered her husband's property in her possession, or what steps might have been taken against her by the creditors or legatees; but we must be allowed to believe, that if a proceeding had been had to compel her to sell, and account for the excess of sales over the appraisement, the ultimate result would have been the same as in the case we have mentioned, upon the principle, that she held and possessed for others, who were entitled to the utmost advantage that could be made of the property. The payments and disbursements she had made bona fide towards the settlement of her testator's [**11]  estate, as well as her own rights derived to her from his will, would unquestionably have been respected in the settlement, superinduced by the proceeding, and suitable allowance would have been made for her trouble and expense in performing her trust. And all these things would doubtless have been equitably accorded to the appellee by the orphans court, if on the death of Ann Haslett he had called on the 

 [*23]  creditors or legatees to take letters of administration de bonis non, or had taken them himself, and separated the estates with the aid and advice of that court.
The second ground taken by the appellee's counsel is not more sustainable than the first. The settlement of the account on the 14th of June 1814 with the orphans court, in which the executrix is charged with the amount of the appraisement, according to the inventory, concludes the rights of no person. Such settlements have been determined by this court to be right prima facie only, and not to be conclusively binding on persons not parties to them, and who have not had an opportunity of appealing from them. Spedden vs. The State, use of Marshall and wife, 3 H. & J. 251, and the cases [**12]  there cited. The account immediately under our consideration was moreover stated in the manner it is, under the authority of the act of 1798, ch. 101, sub ch. 10 s. 1, and was not intended to express or imply an opinion of the court in relation to the ownership of the property; but if so intended, the court's judgment, authorizing the executrix to retain the property as her own, at the appraised valuation, is not conclusive on the legatees of William W. Haslett, for the reasons mentioned in the case referred to. The point is not directly decided in the before mentioned case of Hall vs. Griffith, but the court could not well have arrived at the legal conclusions drawn by them, if it had been their opinion, that a settlement by the inventory changes the character of the property appearing in it; for it was an admitted fact in the cause, that the administrator de bonis non had passed an account, by which it was apparent he had overpaid the appraised value of the estate considerably.
After what has been said, it seems superfluous to declare our opinion, that the executrix, Ann Haslett, did not fully administer the estate of her testator, in her lifetime, and [**13]  that there was a necessity for an administration de bonis non. If it is meant that a final account in the orphans court is the best evidence of a full administration, without enquiring into the strength of the proposition, we answer, that no such evidence is to be found in the record before us. The account passed by the executrix in her lifetime, has none of the characteristics of a final account, and the account passed after her death by her executor, was wholly unauthorized by the act of 1816, ch. 203. 

 [*24]  There are but two items in this last mentioned account, and neither of them relate to the acts, payments or disbursements of the executrix, in her lifetime.
Another question of law discussed before this court, and which we have to decide, arises on the plea of limitations. It was argued, that the action in this case is barred by length of time, as much as six years, if not more, having intervened between the alleged conversion, and the institution of the suit, and that on this score the court below were right in the general instructions given by them to the jury. The argument was met on the part of the appellant with the case of Hepburn, administrator of Fishwick,  [**14]   vs. Sewell, which was asserted to be an exactly similar case, and to put an end to the question. We have examined Hepburn and Sewell, and compared it with the facts in the record, and are of opinion that it is not an apposite case; but we nevertheless think that this action is not barred by the statute of limitations. In the case referred to, no tortious act was imputed to Sewell before letters of administration were obtained by Hepburn, and the wrongful conversion complained of was evidenced by a demand and refusal subsequent to the accrual of the right to sue. Here the alleged appropriation and conversion of the property by Glenn was long before the letters de bonis non were granted to Smith, but at a time when there was no person to assert the rights of the creditors and legatees of the deceased William W. Haslett; and the court have no doubt, that the statute begins to operate only from the time a right to demand the thing in question vests in some one. It is like the common case of a simple contract creditor dying before his debt becomes due, which his administrator may recover, although more than three years have elapsed from the day of payment to [**15]  the date of the letters, provided a suit is brought within three years after the date of the letters. Laches cannot be imputed where there is no one to sue, and the cause of action accrue only in a case such as this, from the time there is a competent person to bring it.
A further question was moved in this cause by the appellant's counsel, about which, it appears to us, they were clearly wrong. They contended that the executrix, Ann Haslett, ought to have brought into the administration of her husband's estate the 

 [*25]  crops growing on his land at the time of his decease. The point is, whether, as emblements, they survived to the wife under the trust deed, or made a part of the husband's personal estate? And we decidedly think, that as the crops were sowed or planted by the vendor, John Heslip, before he sold to Haslett, they went with the land to Ann Haslett, who out-lived her husband, and became tenant in fee of the trust estate, the emblements partaking of the nature of the land in this instance, and going with it. It had been otherwise, if the land had been sowed or planted by the husband after his purchase, and the reason is, that the seed committed to [**16]  the earth by him would not have been cultivated by a joint stock, but would have been entirely and exclusively his property, and be considered in the same situation as if sown in the land of the wife only.
This case has been deliberately considered by us, and we must entertain the opinion, that the court below erred in their instruction to the jury.
We reverse the judgment, and send the cause back under a procedendo.
JUDGMENT REVERSED, &c.  

15 of 22 DOCUMENTS 

ADREON VS. HAWKINS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

4 H. & J. 319; 1818 Md. LEXIS 8 

June, 1818, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court. Assumpsit for the use and occupation of a house for three months. The general issue was pleaded. On the trial the plaintiff, (now appellee,) gave in evidence the following contract, under seal, between him and a certain John Sands, for the letting of the premises in the declaration mentioned. "Agreement made between Wm. Hawkins and John Sands, this 2d day of April 1810. That the said Wm. Hawkins hath leased and rented to the said John Sands, all that lot on South-street, with the buildings and improvements, No. 7, in which he now lives, for one year, at seven hundred and fifty dollars pr. year, to be paid quarterly, and at the end of each quarter, and to give or take a quarter's warning before the expiration of the year. For the true performance of the above agreement, both parties bind themselves in the penalty of fifteen hundred dollars, to be paid by the party failing, to the party complying, with this agreement." And that without any further agreement or contract, Sands continued in the possession and occupation of the premises, paying rent in conformity to the reservation in said agreement, until the 18th of November 1813. That then the defendant [**2]  took the premises from Sands on the same terms on which Sands had them. That the defendant continued in possession until the 2d of October 1814, and paid rent at the expiration of each quarter to Sands, until the expiration of Sands' time, and to the plaintiff afterwards, the amount reserved in the agreement between the plaintiff and Sands. And the plaintiff further gave in evidence, that some short time before the expiration of the last year of the occupation of the house by Sands, the defendant applied to him to be admitted to occupy the premises, on the same terms that Sands had done; to which the plaintiff agreed; and the defendant continued in the possession until he quit the same in the manner hereafter mentioned. The defendant then gave evidence, that before the expiration of Sands' time in the house, and while the defendant was in possession thereof, under the authority and by permission of Sands, the defendant had a conversation with the plaintiff, in which he stated that business was then very dull, and that if it continued to be so after Sands' time in the house was out, he would expect him to lower the rent; and that the plaintiff then said, that in that event he would [**3]  lower the rent. The defendant further gave evidence, that business did continue as dull as it was at the time of the foregoing conversation, during the whole of the time that the defendant remained in possession of the premises, as is hereinafter mentioned; and that after the expiration of Sands' time in the house, and before the defendant removed from it as hereinafter mentioned, but at what precise time the witness could not determine, the defendant spoke to the plaintiff about lowering the rent on account of business continuing so dull, and told him he thought he ought to do it; but the plaintiff replied that the defendant was in the same situation as others who had taken houses on high rent, when business was brisk, and were now obliged to pay the rent, although business was dull. That afterwards the defendant, on the 1st of October 1814, the day before the expiration of a quarter, removed from said premises entirely, and sent the key of the house to the plaintiff, with the following note directed to him, which note and key were left at his dwelling, viz. "I have sent the key of your house, and shall make out your bill, and then I am ready to settle the balance of your rent whenever [**4]  you please to call." And that on the 5th of October 1814 the plaintiff sent the following answer: "I am informed by my family you have sent out to my house the key of the house I rented you in South-street. This is to inform you, that I do not take the house off your hands until the end of the year you took it for, which ends 2d April 1815; you may send for the key when you please." That on the 4th of October 1814, the plaintiff called at the defendant's new place of business and abode, and received the rent due up to the second day of October, and gave therefor the following receipt, and did not express any dissatisfaction at the removal of the defendant from his premises, or inform him that he should continue to look to him for the rent of the same, viz. "Recd. Baltimore 4th October, 1814, from Mr. C. Adreon, three hundred and seventy-five dollars, in full for house rent up to the 2d day of this month, including his bill.

Wm. Hawkins."

The defendant further gave evidence, that he never afterwards received said key, nor had any actual possession, occupation or use of said premises, but that the key continued in possession of the plaintiff And the plaintiff also gave evidence,  [**5]  that there was no such agreement, as is stated on the part of the defendant, about the reduction of rent if business continued as dull as it was during the time that Sands occupied the house. And he further gave evidence, that he never took the possession of the house, or in any manner interfered with the same, until after the 2d of April 1814, when the year had expired, other than by suffering the key to remain at his own house, which would have been delivered to defendant at any time he might have called for it. The defendant then moved the court to direct the jury, that if they believed the testimony so given by the defendant, notwithstanding the evidence of the plaintiff, that then the plaintiff is not entitled to recover in this form of action. But the Court [Hollingsworth and Bland, A. J.] refused to give such direction. The defendant excepted; and the verdict and judgment being against him, he appealed to this court.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

Where D took a lease of a house from P for one year, on the same terms it had been let by P to J S the former tenant, the rent to be paid quarterly, and D had then the possession of the house under J S; and that possession was continued under the contract between P and D--Held, that D became liable to an action for use and occupation, and his liability to that action could not be divested or defeated by his abandoning or relinquishing the possession, or underletting to another, and that liability continued during the term.  

COUNSEL:
Winder, for the Appellant, stated that there were two questions in the case--1. Whether under the circumstances the plaintiff below could maintain the action for use and occupation against the defendant while he did not occupy or use [**6]  the house? 2. Whether if the jury believed the evidence of the defendant, it did not in law amount to an assent on the part of the plaintiff, that the defendant should give up the house on the 1st of October 1814?

On the first point, he referred to the statute 11 Geo. II, ch. 19, s. 14 2 Com. on Cont. 509, 512, 514. Naish vs. Tatlock, 2 H. Blk. 323. 1 Esp. Dig. 60, (20.) Bull vs. Sibbs, 8 T. R. 327. Gregory vs. Badcock, 2 Smith's Rep. 18; and Redpath vs. Roberts, 3 Esp. Rep. 225.

On the second point, he cited Redpath vs. Roberts, 3 Esp. Rep. 225; and Shirley vs. Newman, 1 Esp. Rep. 266.

Williams, for the Appellee, on the first point, referred also to the statute 11 Geo. II. ch. 19, s. 14. 2 Com. on Cont. 513, 514, 521. Bull vs. Sibbs, 8 T. R. 327. 1 Esp. Dig. 60, (20.) Redpath vs. Roberts, 3 Esp. Rep. 225. 1 Chitty's Plead. 338. 2 Chitty's Plead. 10, (note;) and 3 Selw. N. P. 1180.

On the second point, he contended, that the decision of the court below did not prevent the defendant from contending before the jury that the contract was dissolved, by consent of the parties, if the jury believed that there was such a dissolution; and the verdict negatives that there [**7]  was such a rescinding of the agreement.  

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

OPINIONBY:
CHASE 

OPINION:

 [*321]  CHASE, Ch. J. delivered the opinion of the court. It appears by the statement of facts that the defendant in the court below, took a lease of the house in South street No. 7, from the plaintiff, for one year, on the same terms it had been by the plaintiff let to J. Sands, the former tenant--the rent to be paid quarterly. At the time of the contract between the plaintiff and the defendant, the latter had the possession, use and occupation of the house under Sands, which possession, use and occupation, was continued under the contract between the plaintiff and the defendant, and the defendant became liable to the action for the use and 

 [*322]  occupation, and his liability to that action could not be divested or defended by his abandoning or relinquishing the possession or underletting to another, and that liability continued during the term.
JUDGMENT AFFIRMED.  

16 of 22 DOCUMENTS 

DIFFENDERFFER vs. HUGHES.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

7 H. & J. 3; 1825 Md. LEXIS 3 

June, 1825, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court. In this case the appellant at the last term dismissed the appeal.  

DISPOSITION:
MOTION OVERRULED.  

HEADNOTES:

An appellant may dismiss his appeal at any time.  

COUNSEL:
Mitchell, for the Appellee, moved the court, at the present term, for an order to strike out the dismissal, and to enter the judgment of the court below affirmed, so as to enable the appellee to take out execution from this court for the debt and costs.  

OPINION:

 [*4]  THE COURT. The appellant may at any time dismiss his appeal.
MOTION OVERRULED.  

17 of 22 DOCUMENTS 

WAGNER vs. WHITE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

4 H. & J. 564; 1819 Md. LEXIS 26 

December, 1819, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court. Assumpsit. The declaration contained two counts; the first upon an express contract to pay rent, and the other for use and occupation. The defendant, (now appellant,) pleaded 1. Non assumpsit. 2. "That a large multitude of armed men, with high and irresistible force, did seize upon the said premises, and him the defendant did evict and turn out of the said premises, and the said house and improvements thereon did break down and destroy, and ruin, and thereby prevented the defendant from having or receiving any use or benefit from the said premises; and this he is ready to verify," &c. 3. "That a large body of armed men, enemies to the United States and this state, with irresistible force evicted and turned the defendant out of the possession of the premises aforesaid, and the house and buildings thereon broke and destroyed, and prevented the defendant from having and enjoying the use and occupation of the same, for and during the time aforesaid; and this he is ready to verify; wherefore he prays judgment," &c. To the first plea the plaintiff joined in issue. To the second plea she demurred; and to the third plea she replied, "That the defendant [**2]  was not, with irresistible force, evicted, and turned out of the possession of the premises by a body of armed men, enemies to the United States and this state; and this the plaintiff prays may be inquired of the country, &c." Issue joined. The county court gave judgment on the demurrer for the plaintiff; and on the issues in fact verdicts were found for the plaintiff, and judgment being thereon rendered, the defendant prosecuted this appeal.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

In an action of assumpsit upon an express contract to pay rent for a house, the defence set up was, that a "large multitude of armed men, with high and irresistible force, seized upon and destroyed the demised premises, and evicted the lessee"--Held, that as the destruction of the demised premises by fire will not excuse the tenant from payment of the rent on an express covenant, a principle decisive of this case, so here, although it is a verbal, and not a written contract, on which the claim is founded, yet it is such a lease as the law recognizes; and the promise to pay the rent reserved, is just as valid and binding as if it was a covenant under seal; and that the plaintiff was entitled to recover upon the first count in his declaration, which charges an express contract to pay rent.

Whether such eviction would not be a good bar to an action for use and occupation only? Quere.  

COUNSEL:
Winder, for the Appellant.

Pinkney and R. Johnson, for the Appellee, referred to Belfour vs. Weston, 1 T. R. 310. Monk vs. Cooper, 2 Stra. 763. S. C. 2 Ld. Raym. 1477. Hallett vs. Wylie, 3 Johns. Rep. 44. Auriol vs. Mills, 4 T. R. 98. Shubrick vs. Salmond, 3 Burr. 1637. Mills vs. Auriol, 1 H. Blk. Rep. 433, and White vs. Wagner, (ante 373.) 

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

OPINIONBY:
BUCHANAN 

OPINION:

 [*565]  BUCHANAN, J. delivered the opinion of the court. The defence set up is not confined to either of the counts in the declaration, but goes to the whole; which presents the question, whether the facts stated in the second plea are sufficient to absolve the lessee from his [**3]  liability for the rent, which by his express agreement he contracted to pay? For, if the lessor is entitled to recover on the first count in the declaration, it is enough, though perhaps such eviction and destruction would be a good bar to an action for use and occupation only, without any lease or agreement to pay rent. The facts relied on are, that a "large multitude of armed men, with high and irresistible force, seized upon and destroyed the demised premises, and evicted the lessee." In an action on the case in nature of waste, between the same parties, and on the same facts, it was determined by this court at June term 1818, (ante 373,) that the destruction being neither by the act of God, nor of enemies to the state, (in England, the king's enemies,) the defendant was answerable in damages to the plaintiff for the injury done to the premises; and that case would seem to go the whole length of settling this. For if an action on the case, in nature of waste, will lie against a tenant for an injury to the premises, which he had not the means of preventing, it would be difficult to find a reason why a lessee should not be answerable for rent, which he has expressly stipulated [**4]  to pay. But independently of that decision, it is a principle settled and established by numerous cases to be found in the books, "that the destruction of the demised premises by fire, will not excuse the tenant from payment of the rent, on an express covenant." Which principle is decisive of this case. For though it is a verbal, and not a written contract, on which the claim is founded, yet it is such a lease as the law recognizes, and the promise to pay the rent reserved is just as valid and binding as if it was a covenant under seal. The lessor has done no act to discharge the lessee, and there is no solid reason 

 [*566]  why a destruction of the premises by such a number of men as he could not resist, should exonerate him from the rent any more than a destruction by fire, which he could not prevent. It is said to be hard on a lessee to be made to pay rent, for property which he has been deprived of the use of, without any fault on his part. It is so; but it would be a greater hardship on lessors if the law were otherwise. And however hard the general rule may seem to bear on a lessee, clearly without fault, it is better that the law should be so, and that every lessee should [**5]  be made to feel it his interest to preserve the premises entrusted to his care, than that landlords, (who being out of possession, and not in a situation to protect their property,) should be placed at the mercy of their tenants, who may protect themselves by the terms of their leases; and the omission to do so shows a willingness to incur all risks. There is nothing in this case to take it out of the general rule. The defendant has bound himself by express agreement, without any reservation or exception, to pay the rent, and he must stand by his contract.
JUDGMENT AFFIRMED.  

18 of 22 DOCUMENTS 

PANNELL VS. M'MECHEN.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

4 H. & J. 474; 1819 Md. LEXIS 8 

June, 1819, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court. Assumpsit on a promissory note, by the endorsee, (the appellant,) against the last endorsor, (the appellee.) The declaration contained two counts, one on the note, and one for money lent and advanced. The facts as agreed upon were these: The action is brought upon a promissory note drawn on the 27th of April 1813, by John E. Dorsey, for $ 3000, payable 90 days after date to Walter Dorsey, or order, by him endorsed to the defendant or order, and by the defendant endorsed to the plaintiff or order. Across the face of the note was written in red ink, "This note, held by Edward Pannell at the time of signing the deed of trust from Wm. H. Dorsey and others, to Henry Payson and others, forms part of the lien of $ 64,500 to W. M'Mechen, mentioned in said deed.     John E. Dorsey."

All the signatures to the note were admitted. Due and legal notice of its nonpayment by the drawer was given to the several endorsors; and the plaintiff was the holder of the note at the time it became due. The above mentioned writing in red ink was made and signed by John E. Dorsey, and was so made and signed by him in pursuance and in execution of a power vested in [**2]  him by the deed hereinafter mentioned. A deed of trust was executed by William H. Dorsey, and others, to Henry Payson, and others, on the 23d of June 1813, a copy of which was annexed, and admitted to be a true and correct copy, and that the signature and seal of Edward Pannell, the plaintiff, to the said deed, was his signature, and that he had duly executed the deed within the 50 days prescribed therein. No part of the sum specified in the note, and for the recovery of which this action was brought, had been paid or satisfied to the plaintiff. The question on this statement of facts was, whether or not the plaintiff was entitled to recover? The deed referred to was dated the 23d of June 1813, and was between William H. Dorsey, John E. Dorsey and Walter Dorsey, of the first part, Robert Gilmor, &c. of the second part, Henry Payson, William M'Mechen, &c. of the third part, "and the creditors of the said William H. Dorsey, John E. Dorsey and Walter Dorsey, who shall sign and seal these presents within fifty days next ensuing the day of the date hereof, and also such other creditors of the said William H. Dorsey as are herein after specially provided for, (without their signing and sealing [**3]  these presents,) of the fourth or other part." The deed then states, that sundry tracts of land, &c. therein after mentioned, had been mortgaged to Robert Gilmor, &c. That William H. Dorsey, &c. were indebted to sundry persons in divers sums of money, which they were incapable of discharging otherwise than in the manner therein after mentioned. That "in order to discharge the said several debts, they have proposed and agreed to convey, &c. unto the parties of the third part, and the survivors, &c. for the benefit of the parties thereto of the second part, and of such of the said parties of the third part as are creditors, and of the rest of the creditors of the said William H. Dorsey, &c. in the manner and under and subject to the powers, provisos and conditions, hereinafter expressed and declared, all and singular the real and personal estate hereinafter described or mentioned." The said William H. Dorsey, &c. pursuant to the said agreement, and in consideration of the said sums of money so due and owing from them, and in consideration of the sum of one dollar, &c. granted, &c. to Henry Payson, &c. sundry tracts of land, &c. To have and to hold the said lands, &c. unto the said Henry [**4]  Payson, &c. and the survivors, &c. upon certain trusts, &c. That certain funds be applied, in the first place, to discharge the debt due to Robert Gilmor, &c. In the second place one half, &c. to be applied to the payment of $ 19,000 due and owing to J. E. Dorsey for borrowed money, and to extinguish the interest on $ 64,400, and any endorsements or engagements which shall be admitted by John E. Dorsey within 50 days, over and above that sum, being the admitted lien of the said William M'Mechen on the estate and property, &c. After stating sundry other things it proceeds as follows: "And such of the parties hereto of the third part, as are creditors, and all the parties hereto of the fourth part whose names are hereunto subscribed and seals affixed, do hereby respectively signify and declare their assent to the terms and conditions of this deed, and their approbation of the provisions hereby made for the satisfaction and discharge of their several and respective debts and claims, and in consideration thereof they do severally and respectively release, acquit, and by these presents for ever discharge, the said William H. Dorsey, John E. Dorsey and Walter Dorsey, their heirs, &c. and [**5]  each and every of them, and from the payment of the debts and sums of money due or owing to them, the said creditors, from or by the said William H. Dorsey, John E. Dorsey and Walter Dorsey, jointly, or from or by any or either of them jointly or individually; and also from all other claims and demands whatever, from the beginning of the world to the date of these presents. Provided that the said release shall not operate in favour of, or be construed to release any persons or person who may be bound for the said William H. Dorsey, John E. Dorsey and Walter Dorsey, or any or either of them, or who may have endorsed any notes or note drawn or endorsed by the said William H. Dorsey, John E. Dorsey and Walter Dorsey, or any or either of them." This deed was signed, sealed and acknowledged, by the Dorseys and Gilmor, and by all the parties named therein, and among others by the plaintiff. On these facts the county court gave judgment for the defendant, and the plaintiff appealed to this court.  

DISPOSITION:
JUDGMENT REVERSED.  

HEADNOTES:

J E D made a promissory note, payable to W D, or order, who endorsed it to W M, or order, who endorsed it to E P, or order. J E D and W D entered into a deed of composition with their creditors, (among whom was E P.) by which J E D and W D, having conveyed all their estate to certain trustees, among whom was W M, were discharged from all debts and sums of money due or owing to the said creditors, with a proviso, "that the said release shall not operate in favour of, or be construed to release any person or persons who may be bound for the said J E D and W D, or either of them, or who may have endorsed any notes or note drawn or endorsed by the said J E D or W D, or either of them." Due and legal notice having been given of the non-payment of the above note, E P brought an action thereon against W M as one of the endorsors--Held, that the action could be instained, and that the release did not discharge the defendant from his responsibility as endorsor. 

COUNSEL:
Winder and Murray, for the Appellant. The defence relied on by the defendant below was, that he and the plaintiff signed a deed of trust, by which the Dorseys were released,  [**6]  saving the responsibility of all other persons; and the question is, whether the defendant is discharged from his liability upon the note in a suit under this release of the plaintiff, notwithstanding the proviso in the deed? 1. Is it not peculiarly the province of the law of merchants, that those acts which would release as to ordinary contracts do not apply to promissory notes? 2. The release is such as would not discharge ordinary contracts. It is said in 5 Bac. Ab. tit. Release, (G) 702, "if two or more are jointly and severally bound in a bond, a release to one discharges the others; and in such case the joint remedy being gone, the several is so likewise." Cites Ex parte Slater, 6 Ves. 146. Here there was no proviso that the others should not be released. So "also, if two are bound in an obligation, and the obligee releases to one of them, proviso that the other shall not take advantage of it; this proviso is void." Cites Everard vs. Herne, Litt. Rep. 190, where the obligors were jointly bound. But the drawer and endorsor of a promissory note are not jointly bound, they are bound severally. When jointly and severally bound, will the release of one, with a proviso, release the [**7]  other? To show that it would not, they cited Shep. Touchs. 126. 3 Com. Dig. tit. Condition, (D. 4) 93, (D. 7) 95, 96. Roe vs. Galliers, 2 T. R. 133. 2 Blk. Com. 186. Hayling vs. Mullhall, 2 W. Blk. Rep. 1235. Smith vs. Knox. 3 Esp. Rep. 47. English vs. Darley, Ibid 49. Mallit vs. Thompson, 5 Esp. Rep. 178. Clark vs. Devlin. 3 Bos. & Pull. 363. Chitty on Bills, 147, 181, 198, 172, 173, 218, 219, 229, 166 to 174, 212 to 214, 232, 215, 230. Gould vs. Robson, 8 East, 576. Rogers vs. Stephens, 2 T. R. 713. Goodall vs. Dolley, 1 T. R. 712. Bull. N. P. 276. Harding vs. Crethorn, 1 Esp. Rep. 58. Bowley vs. Stoddard, 7 Johns. Rep. 207. Sargent v. Appleton, 6 Mass. Rep. 85. Call vs. Hagger, et al. 8 Mass. Rep. 423. Marriott vs. Hampton, 2 Esp. Rep. 546. Brown vs. M'Kennally, 1 Esp. Rep. 279. 2 Kaimes, 121. Chitty on Bills 91, 86, 101, 118. Ballingalls vs. Gloster, 3 East, 481; and 5 Bac. Ab. tit. Release, 608.

Pinkney, for the Appellee. There are two questions in this case--1. Whether the release, notwithstanding the proviso, and the fact that the defendant is a party to the deed, is not a flat bar? 2. Whether it is consistent with the intent of the trust deed, that the plaintiff can resort [**8]  to the endorsor? As to the legal effect of the release at common law he cited 5 Bac. Ab. tit. Release, (G) 702, 18 Vm. Ab. tit. Release, 352, and 5 Bac. Ab. tit. Obligation, 157, 166, 167. He also referred to Williams vs. Hodgson, 2 Harr. & Johns. 474. M'Fadden vs. Parker, 4 Dall. Rep. 275. Claxton vs. Swift, 2 Show. 481. Everard vs Herne, Litt Rep. 191. Cooke vs. Jenner, Hob. 66. Parker vs. Lawrence, Ibid 70. Norton's case, Cro. Eliz. 30. 1 Esp. Dig. 416. Chitty on Bills, 272, 274. M'Donald vs. Bovington, 4 T. R. 825, and Nadin vs. Battie, 5 East, 147. If the holder of a bond or note gives time to the principal, the security is released; by time is understood an extension of credit, until the end of which time, the holder by some act of his own has restrained his power of bringing suit. The reason why a security is released is that his risk is thereby increased, the contract is altered, the time is to his detriment. If he consents to this credit he has no equity to be released. But if the holder extinguishes his claim against the principal, so that he can never again sue him, the security is released, although he may give his consent not to be released, because the original contract [**9]  is at an end; as for instance payment by the principal, the security is released, even if it were covenanted to the contrary.  

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

OPINIONBY:
JOHNSON 

OPINION:

 [*477]  JOHNSON, J. delivered the opinion of the court. The present is an appeal from a judgment obtained by the appellee on a suit brought against him by the appellant, decided on a case stated. [After stating the facts he proceeded.]
On those facts the plaintiff ought and would have recovered a judgment. The defence relied on is that the plaintiff, the endorsee and holder of the note, released the drawer and the first endorsor, and thereby discharged the last endorsor.
In forming an opinion in this cause, the nature of the release in question, and the manner and terms on which it was obtained, demand particular attention. The drawer, and the first endorsor, finding themselves in embarrassed circumstances, unable to meet their engagements as they became due, propose to compound with their creditors; and on the 23d of June 1813, executed a deed of trust to certain trustees, of whom the defendant was one, of a large real and personal estate, to be by them applied towards [**10]  the payment of their debts, in the order directed by the deed; thereby securing, or attempting to secure, to 

 [*478]  the defendant in this cause, the payment of the notes in question, on the terms, that such of their creditors as should come in and assent by becoming parties to the deed, should participate and have an interest in the property so conveyed. The deed itself contains a clause by which the drawer and the first endorsor are released, on the express terms that such release should not extend to any other person, but that such person should continue responsible as if the deed had not been executed. To those terms the plaintiff and defendant assented, and signed their names, and set their seals to the instrument.
It is on that release, so obtained, and on such express stipulations, that the defendant, against the express terms of the instrument itself, relies for his exoneration.
The first question which arises is, ought a release on principle so obtained, with the consent of all parties interested, specifying its extent and object, to be extended beyond the stipulated object?
The second is, will the law, against the express agreement of all the parties interested, enlarge [**11]  the release so as to produce a result different from the express stipulations; in other words, to give to the last endorsor the benefit of the release against his express agreement?
The object of the deed of trust was to give to the creditors of the drawer and first endorsor all the benefit they could derive from the property so conveyed--as between them this arrangement was of considerable moment; without it the second endorsor would have had nothing to rely on, but the individual responsibility of the drawer and first endorsor--that individual responsibility he was willing to release, on the substitution of the property conveyed on the terms and on the conditions prescribed by the deed.
It may be asked, why must a release, to which all persons interested are parties, have an effect different from that they agreed on? Will it violate any well known rule of law, or is it inconsistent with any principle of justice or propriety? So far from the latter being the case, the reverse appears to follow; for as the original debtors were bound to pay the whole, and as they could not, but were willing to transfer, on terms acceptable to all interested, what they had, for the easement of [**12]  those who were bound for them, the refusal of him then holding the obligation to accede to such terms, would present grounds of complaint; not such, it is true, as would exonerate those who were bound for them. But although it would not free them, yet it is evident such refusal, in its result, must draw more from the funds of the last endorsor than otherwise would have been the case. With the assent of the holder of the note, a part, if not the whole, might have been raised from the funds of the drawer and first endorsor. Those funds could not be obtained except on their discharge, that discharge the second endorsor was willing to assent to, remaining himself responsible. But, if such discharges cannot 

 [*479]  be obtained without releasing the last endorsor also, then no accommodation for his benefit, requiring the assent of the holder, can ever be obtained.
The question then is, must the release of the drawer and first endorsor, by virtue of any fixed principle of law, release also the next endorsor, when he is a party to the instrument containing the release, expressly declaring such should not be the effect?
In a case of this description, when a person claims the benefit of [**13]  a release against its terms, to which he has assented, it might be expected some decisions in support of the position would have been produced--none such has been cited.
The cases relied on are, that a release given to a joint obligor, or to joint and several obligors, will release the other, and that a release to one trespasser, will release the co-trespasser.
As to the case of the joint obligor released, discharging the other, the principle of the decision seems to be, that unless it extended to all, the person to whom the release was given could obtain no benefit by it; and therefore, that a release given to such an obligor, should extend to the co-obligor, although the release on its facts contained a proviso to the contrary.
The only case which has been produced of such a limited or restricted release is Everard vs. Herne, in Litt. 190; but the counsel differ in opinion as to the real state of that case. The one supposes the bond to have been joint only, the other joint and several. The reason why it is conjectured to have been joint and several is that the suit was brought against one. There is nothing in the case from which it is to be inferred the bond was several [**14]  as well as joint, except only that one was sued. Nor is it deemed of any importance whether joint, or joint and several. But supposing the case in Littleton to have been on a joint and several bond, yet it seems not to meet the case before the court; for nothing is disclosed by that case of the assent of the co-obligor to such release producing such an effect. It is presumed that the release in that case was on a joint bond, for if the bond was joint and several, the obligor might have sued one, omitting to sue him he wished to benefit--a release therefore was not necessary, unless it was intended, as between the obligors themselves, to change the co-responsibility, and cast the whole burden on him, whom the obligor elected to remain liable. But the case in Littleton is the only authority cited with a restrictive release.
All the other cases of releases are where the releases are general, importing satisfaction; and the debt, once satisfied, whether joint, or joint and several, the demand of the obligee was at an end, and of course he could recover from no person--differing materially from a release shewing by itself the claim still existed--differing materially [**15]  from a case, where, by the facts as agreed on by the parties, 

 [*480]  it is expressly admitted that no part of the money has been paid or satisfied.
The cases most apposite to the cause before the court are where the holder of a note, or bill, gives time, which would exonerate the drawer or endorsor; but which fact of giving time is deprived of that effect in consequence of the assent of the person who would have been bound, if such time had not been given. The time given is the ground of discharge or exoneration, the assent deprives the time so given of such an operation
Therefore, without saying that a release to a person bound jointly and severally, with a proviso attempting to limits its effect, can operate to the discharge of the co-obligors not included in the release, the court are clearly of the opinion, that the release given in this case cannot discharge the defendant from his responsibility as endorsor of the note on which the suit is brought. The judgment of the court is therefore reversed.
JUDGMENT REVERSED.  

19 of 22 DOCUMENTS 

HAYWARD VS. CARROLL, et al.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

4 H. & J. 518; 1819 Md. LEXIS 14 

June, 1819, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from the Court of Chancery. The bill was filed by R. Chamberlaine, G. R. Hayward and W. Hayward, of whom W. Hayward is the only survivor, (now appellant,) against D. Carroll and C. Carroll of Carrollton. It states that D. Carroll, having mortgaged certain lands to C. Carroll of Carrollton, for money due to him, afterwards sold the greatest part of such lands to R. Chamberlaine, and bound himself, by his bonds duly executed, to make a title free from all incumbrances, on payment of the purchase money; for which Chamberlaine gave twelve bonds, payable at certain periods. That as many of these latter bonds were assigned by D. Carroll to C. Carroll, as C. Carroll's debt, secured by the mortgage, amounted to. That afterwards R. Chamberlaine assigned to G. R. Hayward and W. Hayward, the aforesaid bonds of conveyance, and they took up the bonds assigned by D. Carroll to C. Carroll, by giving their own to C. Carroll, on condition that he would assign to them the said mortgage deed, which he did accordingly; and they pray by their bill that they may have the benefit of this mortgage and assignment, for the purpose of compelling D. Carroll to redeem the mortgage so assigned to them,  [**2]  in the same manner as C. Carroll might if he had not received their bonds, and given them an assignment of such mortgage. The assignment of the mortgage stated in the bill is in the following words: "Whereas Robins Chamberlaine has contracted to purchase of Daniel Carroll of Baltimore, part of a tract of land on which the said Carroll now resides, and the whole of the said tract is either mortgaged to me, or the title to part of it still remains in me, I do hereby release all my right, claim and title, to the part of the said land contracted for by the said Chamberlaine, to Messrs. George Robins Hayward and William Hayward, of Talbot county, for value received of them. Witness my hand and seal this 21st day of March 1803. Ch. Carroll of Carrollton, (L. S.)

Test. John Edmondson."

The answer of C. Carroll admits the execution of the original paper, but denies that he ever intended to assign the mortgage to the Haywards. The answer of D. Carroll denies the assignment, and insists on the extinguishment of the mortgage by the payment of the mortgage debt. Testimony was taken under commissions issued for that purpose; but it is not material to state it.

KILTY, Chancellor,  [**3]  (February term 1815.) It appears that the complainants G. R. and W. Hayward can have no right to relief on the bonds of conveyance, as R. Chamberlaine had no right to assign them after his insolvency, and the lands mentioned in them were returned in his schedule as his property. The chancellor is of opinion that the prayer for relief under the mortgage, cannot be granted, although there may have been some misapprehension on the subject, and G. R. and W. Hayward may sustain a considerable loss by the transaction. There is among the insolvent papers one purporting to be a receipt from C. Carroll for the bonds of R. Chamberlaine, and a bond of D. Carroll, and a copy of that receipt, which may be the one referred to in D. Carroll's answer, but it is not marked as filed, and it does not state what those bonds were received for. There is nothing to show that these bonds were taken as a security additional to the mortgage, and the chancellor is of opinion, that if C. Carroll had thought proper to assign the mortgage on receiving good bonds from W. and G. Hayward, he ought to have returned the bonds which he had received from D. Carroll, and that both ought not to have been assigned without [**4]  his consent; which opinion appears to correspond with that of C. Carroll himself; and there ought to be the strongest proof of both being assigned as a ground for the relief claimed by the bill. There is reason to believe from the evidence, that the exchange of the bonds was agreed to at first without reference to the mortgage, and that the release or assignment of the mortgage, or a part of it, was proposed and agreed to afterwards. Decreed, that the bill be dismissed. From that decree W. Hayward, the surviving complainant, appealed to this court.  

DISPOSITION:
DECREE AFFIRMED.  

HEADNOTES:

The answer of one defendant in chancery cannot be read in evidence against a co-defendant.

If the complainant is interested in establishing a fact by the evidence of a co-defendant, he should examine him as a witness.

Where the contract of the parties is in writing, it can only be proved by its production and evidence of its execution, or by the admission of the party who executed it. A copy is not evidence, though proved to be a true copy, unless the original is lost, destroyed or in the possession of the adverse party.

The complainant in his bill must put in issue whatever he intends proving, otherwise it cannot be given in evidence.

The court of chancery, decrees only secundum al. legata and probata.  

COUNSEL:
Martin, (Attorney General,) for the Appellant.

Pinkney and Harper, for the Appellees, contended, 1. That the paper called an assignment was merely a release: 1st. From its express words. 2d. From its objects as apparent on the face of it. 3d. From the limitation or restriction of its operation to a part only of the mortgaged premises. To release a mortgage, as to a part of the mortgaged premises, in favour of one who had purchased that part, is a natural and common operation; but to assign a part only of a mortgage is at least a very novel thing.

2. That no parol evidence can be allowed to vary or in any [**5]  manner affect the operation or construction of this paper; it not being a case of latent ambiguity or of mistake, which chancery can correct.

3. That if this paper were an assignment in the most express and formal words, it could not operate in favour of the complainants as assignees--because, as assignees they cannot be in a better situation than C. Carroll, the mortgagor and assignor, but must be affected by all the equity which would operate against him, in favour of the mortgagor. And the assignor in this case could not have a decree for a foreclosure or sale, because the mortgaged debt was paid. This payment was effected by the bonds of Chamberlaine, assigned to the mortgagor by D. Carroll, and paid to the assignee by the Haywards. This payment was not the less perfect or effectual for being made on bonds instead of money. It equally discharged the mortgage debt, and must forever protect the mortgagor.

4. That the complainants, not having produced the bonds assigned to them, nor in any manner accounted for them, are to be considered as having received payment of them, and consequently as satisfied for the mortgage debt. Therefore, if they were assignees, and not affected [**6]  by the payment of the mortgage debt to their assignor, they must still be precluded from the relief they pray by this payment to themselves.

They also contended that D. Carroll having by his answer denied that there was any assignment, the complainants were put to the proof of it, and that no such proof was made. The admission of the paper by C. Carroll cannot make it evidence against D. Carroll. It is well established in chancery that the answer of one defendant cannot be evidence against another defendant. Wych vs. Meal, 3 P. Wms. 311, (note.) Anon. 2 P. Wms. 300. 2 Eq. Ca. Ab. 67; and 1 Harr. Chan. Prac. 185.  

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

OPINIONBY:
DORSEY; CHASE 

OPINION:

 [*520]  DORSEY. J. delivered the opinion of the Court. William Hayward and George R. Hayward, who were complainants in the court of chancery, claim the benefit of a mortgage executed by the defendant Daniel Carroll, to Charles Carroll of Carrollton, the other defendant, on the ground that the latter had, for a valuable consideration, assigned the same to them; and in their bill they insert a copy of a paper, which they call an assignment, purporting to [**7]  be executed by Charles Carroll, and attested by John Edmondson as a witness. Charles Carroll, in his answer, admits the execution of the original paper, but denies that he ever intended to assign the mortgage to the Haywards. The defendant, Daniel Carroll, by answer, not only positively denies the assignment, but insists on the extinguishment of the mortgage by the payment of the money.
It becomes necessary to inquire, whether the assignment alleged by the Haywards to have been made in their favour, is established by legal evidence.
The answer of Charles Carroll admits the execution of the original paper, of which a copy is exhibited, and therefore, with reference to him, the court have a right to decide on its operation. But as Daniel Carroll, by his answer, denies the execution of the assignment, the fact of such assignment is by him put in issue, and must therefore be proved. Where is the proof of this fact? It is to be found in the admission of Charles Carroll, confessing the execution of the paper termed an assignment? It is not; because it is an established principle of evidence that the answer of one defendant cannot be read in evidence [**8]  against a co-defendant. If the complainants were interested in establishing a fact by the evidence of a co-defendant, they might have examined him as a witness, on interrogatories, and the witness then would have been subject to the cross examination of the other defendant. To withhold from 

 [*521]  such defendant the privilege of cross examination, would be unjust, and this injustice must necessarily result from the practice of permitting the answer of one defendant to be read in evidence against a co-defendant.
Let us proceed one step further, and see whether the fact of assignment is proved by Edmondson. He proves that the Haywards requested him to receive from Charles Carroll an assignment of the mortgage in their favour, and that Charles Carroll did execute such an assignment, and delivered it to the witness, who afterwards gave it to the Haywards.
The assignment here alluded to has not been proved as an exhibit in the cause. That Charles Carroll executed a paper, which was deemed by the witness to be an assignment, is proved. But as the paper was in existence, its execution might and ought to have been proved; and even the copy exhibited by the complainants [**9]  could not be evidence if it had been proved to be a true copy, (and of which there is no proof,) unless the original was lost, destroyed, or in the possession of the adverse party. The testimony of this witness, as well as the allegation in the complainants' bill, shew that the assignment did not rest in parol. As the contract, therefore, of the parties, was reduced to writing, it can only be proved judicially, by the production and proof of the written agreement, or by the admission of the defendants in their answers; as neither of those facts exist, we are of opinion that the pretended assignment is not proved.
It was urged by the appellant's counsel, that even this view of the case was not fatal to the claim of the complainants, inasmuch as the assignment to them by Charles Carroll, of Robins Chamberlaine's bonds, must be considered in equity as an assignment of the mortgage. Supposing, for the sake of argument, (and we are only prepared to make the admission for that purpose,) that such would be the effect, still it is evident that the chancellor's decree ought to be affirmed. The complainants sought relief on the ground that Charles Carroll, by an agreement reduced [**10]  to writing, did assign to them the mortgage. This allegation is put in issue. The complainants fail in establishing their equity as displayed in their bill, but prove a case entirely distinct and different from it. We say entirely different, because the bill, so far from relying on the assignment of Chamberlaine's bonds as the foundation of equity, does not even state that C. Carroll had possession of them. Can this new case, arising out of facts, not one of which were put in issue by the bill, entitle the complainants to a decree? If we were to answer affirmatively, we should prostrate that long established rule which declares that the complainant in his bill must put in issue whatever he intends proving, otherwise he will not be permitted to give it in evidence; and therefore it is that the court of chancery pronounces its decree secundum allegata 

 [*522]  and probata, to shield the defendants against the fatal consequences of surprise.
As there is no legal evidence of an assignment of the mortgage in the record, it follows that the chancellor did not err in dismissing the complainants' bill. His decree ought, therefore, to be affirmed.
CHASE, Ch. J. delivered his [**11]  opinion, affirming the decree of the chancellor upon the points arising under the decree.
DECREE AFFIRMED.  

20 of 22 DOCUMENTS 

TRIPPE VS. FRAZIER, et ux. et al.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND, EASTERN SHORE 

4 H. & J. 446; 1819 Md. LEXIS 4 

June, 1819, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from a decree of Talbot County Court as a Court of Equity. Ann Stevenson, a married woman, being authorized by a marriage contract to make a will, did by her will, dated the 8th of October 1806, direct certain real estate to be sold by her executor, and out of the proceeds certain legacies to be paid. She died soon afterwards, and her husband survived her several years, and possessed the property, having a life-estate therein reserved to him under the marriage contract. After his death, the executor sold the property, as directed by the will, on the 11th of June 1814, and the proceeds exceeded the amount of the legacies. The complainants, (now appellees,) as the heirs at law of the testatrix, filed their bill against the executor, (the appellant,) claiming their shares or portions of the residuum, after the payment of the legacies. The defendant by his answer admitted the receipt of $ 8343 35, including the amount of the sales of the property devised to be sold, for house rent, and a debt due to the testatrix; that after deducting payments and disbursements amounting to $ 4815 76, there remained in his hands a balance due the estate of $ 3527 59. That the pecuniary legacies [**2]  bequeathed amounted to $ 4390, all of which, that is, the principal without interest, he had paid to the persons entitled, with a very few exceptions, and that he was ready to pay the whole, &c. unless two of the said pecuniary legacies were void, and should not be paid at all; the one a legacy given one of the children of R. Harrison, who died before the making of the will, and the other a legacy given to a female charity school in Talbot county, if there should be such an institution founded on good principle, otherwise to be distributed among the real distressed private poor of Talbot county, there being no incorporated school in Talbot county of the above description. The answer further stated, that he had declined to pay interest on any of the legacies, not knowing whether the legatees were entitled to interest before the lapse of one year from the date of the letters testamentary of the defendant. He claimed an allowance for commission, expenses, &c. The facts stated in the bill and answer being admitted by both parties, and the questions of law arising upon them being alone submitted to the consideration of the county court, that Court, [Earle, Ch. J. and Purnell, A. J.] after [**3]  argument on both sides--Decreed, that the legacy left by the testatrix, to the real distressed private poor of Talbot county, should be considered void for uncertainty, and the impracticability of correctly ascertaining the objects of the bequest. That the legacies to one of the three children of R Harrison, (the said child having died before the testatrix,) should be considered as lapsed legacies, and should sink into the residuum of the estate for the benefit of the heirs at law of the testatrix. That the residuum of the estate remaining in the hands of the defendant, should result as real estate to the heirs at law of the testatrix, the same residuum being a part of the net proceeds of the sale of a house and lot in the city of Baltimore, which the testatrix directed to be sold, in and by her will. That the complainants were the heirs at law of the testatrix, and as such entitled to such shares or portion of the residuum as were claimed by them in their bill of complaint; and that the defendant, after making all proper deductions and allowance for commissions, payments of debts, funeral charges and legacies, made and to be made, and costs and expenses incurred, and to be incurred,  [**4]  and other reasonable disbursements on his part, all of which were to be ascertained by the auditor of this court, should pay to the complainants their respective shares of the residuum then remaining in his hands, as executor and trustee of the testatrix, with interest thereon from the date of the decree; and that the legatees in the will of the testatrix were not entitled to interest on their legacies, except from and after the 11th of June 1814, that being the day on which the defendant sold the real estate of the testatrix. The defendant was, therefore, ordered not to pay interest on any of the legacies, except from and after the day of sale of the real estate. From that decree the defendant appealed to this court.  

DISPOSITION:
AFFIRMED.  

HEADNOTES:

AS by her will dated in 1806 directed certain of her real estate to be sold by her executor, and out of the proceeds certain legacies to be paid; and among others, a legacy to one of the children of R. H, which child died before the making of the will: and a legacy to a female charity school in T county, if there should be such an institution founded on good principle, otherwise to be distributed among the real distressed private poor of T county. There was no incorporated school in T county of the above description. The proceeds of the real estate sold exceeded the amount of the legacies bequeathed----Decreed, that the legacy left to the real distressed private poor of T county, shall be considered void for uncertainty, and the impracticability of correctly ascertaining the objects of the bequest. That the legacy to one of the children of R H, (the said child having died before the testatrix,) shall be considered as a lapsed legacy, and shall sink into the residuum of the estate for the benefit of the heirs at law of the testatrix. That the residuum of the estate remaining in the hands of the executor shall result as real estate to the heirs at law of the testatrix. That the legatees in the will are not entitled to interest on their legacies except from the day on which the executor sold the real estate. 

COUNSEL:
Bullitt, for the Appellant. The question is, whether the legatees are entitled to interest on the legacies from the time of the death of the testatrix, or from the time the real estate was sold? He referred to Maxwell vs. Wettenhalt, 2 P. Wms. 26. Lloyd vs. Williams, 2 Atk. 108. Atkins vs. Daubeny, 1 Eq. Ca. Ab. 45. 2 Fonbl. 430.

Goldsborough. for the Appellees, referred to 2 Fonbl. 188, 431. Crickett vs. Dolby, 3 Ves. 10 to 13.  

JUDGES:
The cause was [**5]  argued before CHASE, Ch. J. and JOHNSON, MARTIN, and DORSEY, J.  

OPINION:

 [*448]  DECREE AFFIRMED.  

21 of 22 DOCUMENTS 

PENNINGTON VS. BORDLEY, et al. Lessee.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND, EASTERN SHORE 

4 H. & J. 450; 1819 Md. LEXIS 7 

June Term, 1818, Argued 

June, 1819, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Cecil County Court. Ejectment for a tract of land called Painter's Rest. The defendant in the court below, (the present appellant,) took defence upon warrant, and plots were made. At the trial the plaintiff offered in evidence the plots in the cause, and the surveyor's explanations of the same, and gave in evidence the certificate of survey of the tract of land called Painter's Rest, made for Nicholas Painter, on the 10th of Nov. 1677, and describing the land as "lying on the east side of Chesapeake Bay, and on the north side of a river called Sassafras River, beginning at a marked red oak standing on a bank by the side of the said river, and running up the said river S E for breadth 450 perches, to a marked red oak standing on a point of a neck called Jugen Cabin Neck, and running from said red oak with a line drawn N E into the woods for length 533 1/3 perches, then from the end of the N E line with a line drawn N W 450 perches, then from the end of the N W line with a straight line to the first marked red oak, containing 1500 acres more or less." The plaintiff also gave in evidence the certificate of resurvey of Painter's Rest, made for and in the name of Nicholas Painter,  [**2]  on the 17th of December 1678, "lying on the north side of Sassafras river, at the head of the said river, in Cecil county, beginning at a marked chestnut tree standing on a bank by a valley near the river side, being an easterly bounded tree of a parcel of land laid out for Samuel Hitt, and from thence bounded with the river on the S by a line drawn E S E 75 perches, to a marked red oak standing on a bank by the river, being the first bounded tree of the former survey, and from the said red oak, bounded with the river and the main branch of the river, by a line drawn east southerly 475 perches, to a marked red oak standing by the side of a branch respecting a fork of the branch on the opposite side, and running from the said red oak by a line drawn N E 535 perches, and from the end of the N E line by a line drawn W N W 435 perches, and from the end of the W N W line with a straight line 730 perches, to the first bounded chestnut, containing 1630 acres of land more or less." The plaintiff also gave in evidence the certificate of resurvey of Painter's Rest, made for and in the name of Thomas Bordley on the 3d of October 1724, under a special warrant to resurvey Painter's Rest, surveyed [**3]  on the 10th of November 1677, and resurveyed on the 17th of December 1678, "beginning at a marked chestnut tree standing on a bank by a valley near the river side, being an easterly bounded tree of a parcel of land laid out for Samuel Hill, and running from the said chestnut down the said valley, and up and with the river, S 62 W 14 perches, then S 29 W 11 perches, then S 86 E 24 perches, then S 29 E 12 perches, then S 8 perches, then S 35 W 10 perches, then S 17 E 26 perches, then N 54 E 64 perches, then S 77 E 34 perches, then N 80 E 11 perches, then N 82 E 8 perches, to a marked red oak standing on a bank by the river, being the first bounded tree of the original survey, and from the said oak, up the natural courses of the river and main branch, E 64 perches, then N 62 E 20 perches, then N 22 W 18 perches, then N 5 E 20 perches, then N 86 E 23 perches, then N 75 E 34 perches, then N 80 E 67 perches, then S 52 E 46 perches, then N 80 E 18 perches, then N 36 perches, then E S E 195 perches, to the side of a branch respecting a fork on the opposite side, being the place where the third boundary tree stood, which tree being gone there is now bound a bound white oak standing by the branch [**4]  side, respecting a fork on the opposite side, and running from the said white oak N E 535 perches, then W N W 435 perches, thence a straight line to the beginning tree, containing 1616 acres more or less; also added two parcels of vacancy, the first beginning at the third bounded tree of the said land resurveyed, and running," &c. "containing 75 acres more or less; and the second parcel of vacancy beginning," &c. "containing 210 acres more or less; which said three parcels of land contain in the whole 1901 acres." The plaintiff also gave in evidence a patent for the last mentioned land, granted to Thomas Bordley on the 24th of October 1724. He also gave in evidence certificates of several other tracts, which it is not material particularly to notice.

The plaintiff also offered in evidence, that the said tracts of land, as also that part of the lands contained in the patent of Painter's Rest, dated 24th of October 1724, and the certificate of Painter's Rest, dated 3d of October 1724, called the second vacancies, were correctly located by him on the plots. He also offered in evidence, that the black oak tree called for as the beginning of Heath's Range, stood at the place marked [**5]  on the plots by the red letter A, and that at that place a stone which was hewed at Philadelphia, and on which the letters H R ft. pt. was engraved or cut, at the instance of Daniel Charles Heath, the then proprietor of the land, except that part of Heath's Range included in a deed from James Heath to Otho Othoson, dated the 10th of May 1706, was about thirty years ago, by him said Heath, in the presence of a number of persons, fixed and placed to perpetuate the place where the beginning tree of Heath's Range, first part, originally stood. The plaintiff also offered in evidence that the lessors of the plaintiff had title to the lands contained in the said certificate of Painter's Rest, dated 3d of October 1724, and in the patent for said lands dated the 24th of October 1724. The defendant then also offered in evidence the plots and explanations of the surveyor, and the locations thereon made by him, (which are made part of this bill of exceptions.) and gave and read in evidence the certificate of Painter's Rest, dated the 10th of November 1677, and also the certificate of Painter's Rest, dated the 17th of December 1678; also the certificate of Painter's Rest, dated the 3d of October [**6]  1724; the certificate of Green Spring, dated 24th of October 1680; the certificate of Martin's Nest, dated 24th of October 1680; and the certificate of Heath's Range, the first part, dated 31st of August 1704; all of which are the same certificates which were read by the plaintiff, and which have been before inserted. He further gave in evidence the patent of Heath's Range, granted to James Heath the 18th of February 1705, also a deed from James Heath to Otho Othoson, dated the 10th of May 1706, for "all that parcel of land, being part of a tract of land called Heath's Range, the first part, lying at the head of Sassafras river, in Cecil county, surveyed for the said Heath the 31st of August 1704, beginning at the end of the first line of the said land, and running along the second line thereof S 36 W 210 perches, to the head of the lands surveyed from the river side, and is also along with the last line of Painter's Rest to the said head lands, then N W with the said head lands 60 perches, to the W corner of Norland, then along the head of Daley's Desire N 62 W 308 perches to the N E corner of Colleton, thence a right line to the first tree, containing 229 acres, or thereabouts."  [**7]  The defendant also, for the purpose of proving the true location of Painter's Rest, surveyed the 17th of December 1678, proved that James Ford, one of the witnesses who was sworn on the survey, is since dead, and then read in evidence his deposition, which had been taken on the survey to the third boundary of Painter's Rest, on the 25th of February 1814, which stated "that the white oak stump, at the side of the dry branch respecting a fork of Sassafras river, at the end of the third boundary of Painter's Rest, nigh to which a large stone is laid on the ground also nigh to a large black walnut tree, was shewn to the deponent by the late Robert Milligan, John Gheas, and William Humphreys, late surveyor of Cecil county, as a boundary of Painter's Rest, but does not recollect which of the surveys it was said to be a boundary of." The defendant then prayed the court to direct the jury, that if they should believe the true location of the W N W line of Painter's Rest, resurveyed for Nicholas Painter, the 17th of December 1678, to be from the black letter C to the black letter D, that then, whether they shall find the beginning of Heath's Range to be at the black C, or at the red A, that [**8]  the first line of Heath's Range cannot be extended beyond the black letter D, but must there stop, so that the second line of Heath's Range shall run along with Painter's last line 210 perches, to the head of the lands surveyed from the river side, according to the call in the certificate and patent of Heath's Range. And the plaintiff also prayed the court at the same time to direct the jury, that if they should be of opinion from the evidence, that at the time of making the survey of Heath's Range, the first part, James Heath considered the location of Painter's Rest as surveyed in 1678, to run from black A to black R, and thence to E, and thence N E 535 perches, and thence W N W 435 perches, and thence to the beginning, and actually marked a tree for his beginning at or near the end of the N E line at red A, and surveyed the first and second line of his survey according to such location of Painter's Rest, the jury ought to locate the tract of land called Heath's Range, the first part, agreeably to such location of Painter's Rest, whether such location be the true location thereof or not; and the Court, [Purnell, A. J.] upon both prayers gave the following instructions to the jury:  [**9]  At the trial of this cause, some terms past, a prayer was preferred by the defendant's counsel similar to the one now submitted by him, and in the consideration of that prayer it became necessary to determine on the construction of the certificate of Heath's Range in 1704, whether it contained such doubtfulness or ambiguity as to render it the peculiar province of the jury to determine, or whether the calls were imperative, and made it proper for the court to instruct the jury. It was contended, on that occasion, as in the present, that it was a subject solely for the consideration of the jury; but I entertained a different opinion, and did instruct the jury. The expressions of Heath's Range are, that it shall begin at a marked black oak standing at the end of the N E line of Painter's Rest, resurveyed for Nicholas Painter, December 17, 1678, and running thence with Painter's line, W N W 435 perches, thence along and with Painter's last line S 36[degree] W 210 perches, to the head of the lands surveyed from the river side. These expressions I considered imperative, controlling both courses and distances, and that the lines of Heath's Range must be either enlarged or shortened, so [**10]  as to correspond with the true location of Painter's Rest. And this opinion I must entertain on the present occasion, subject to a modification that could not be let in on the former trial, because the plots would not authorize it.

It is therefore my opinion, that if the jury believe the true location of the W N W line of Painter's Rest, surveyed for Nicholas Painter on the 17th of December 1678, to be from the black letter C to the black letter D, that then, whether the jury shall find the beginning of Heath's Range to be at black C or red letter A, the first line of Heath's Range cannot extend beyond the black letter D, and that the second line of Heath's Range must run along with Painter's last line 210 perches, to the head of the lands surveyed from the river, unless the jury should be of opinion, from the evidence in the cause, that at the time of making the survey of Heath's Range, the first part, James Heath considered the location of Painter's Rest, as surveyed in 1678, to run from A to R, to E, to red V, to red B, and then to the beginning, and actually marked a tree for his beginning at or near the end of the N E line at red A, and surveyed the first and second line [**11]  of his survey according to such location of Painter's Rest, then the jury ought to locate Heath's Range, the first part, according to such location. This last part of my opinion is induced by the decision in the case of Tenant vs. Hambleton, (3 Harr. & Johns. 233.) On all the facts it is for the jury to decide; they are the sole judges what is the true location of Painter's Rest. They are also to determine in what manner Heath's Range, the first part, was surveyed and taken up, whether agreeably to what the defendant contends to be the true location of Painter's Rest, or whether as corresponding to the certificate of Painter's Rest of 1678, as located by the plaintiff. These are all facts for the consideration of the jury, in which the court will in no sort interfere. The defendant excepted; and the verdict and judgment being for the plaintiff, the present appeal was prosecuted by the defendant.

THE PLAT EXPLAINED.

By the plots in the cause it appears that the plaintiff located Painter's Rest, surveyed the 17th of December 1678, beginning at A, running to R, to E, to red A, to green R, and then to A. The defendant located the same tract beginning at red A, running to R, to [**12]  B, to C, to D, and then to A. The plaintiff located Heath's Range, the first part, beginning at red A, running to red B, to red C, to red D, to red E, to red F, to red X, &c. The defendant located that tract beginning at C, running to D, to red R, to the head of the lands surveyed from the river side, &c. He located that tract a second way, beginning at C, running to red A, to red V, (near red A,) to D, to red R, &c. They differed as to the termination of the second line of Painter's Rest; the plaintiff contended that it ended at E, and the defendant that it ended at B.

[SEE PLOT IN ORIGINAL] 

DISPOSITION:
JUDGMENT REVERSED.  

HEADNOTES:

A tract of land called Painter's Rest was surveyed in 1678, "beginning at a marked chestnut tree standing on a bank by a valley near the river side, being an easterly bounded tree of a parcel of land laid out for S H, and from thence bounded with the river on the S by a line drawn E S E 75 ps. to a marked red oak standing on a bank by the river, being the first bounded tree of the former survey, and from the said oak, bounded with the river, and the main branch of the river, by a line drawn E southerly 475 ps. to a marked red oak standing by the side of a branch, respecting a fork of the branch on the opposite side, & running from the said red oak, by a line drawn N E 535 ps. and from the end of the N E line, by a line drawn W N W 435 ps. and from the end of the W N W line, with a straight line 730 ps. to the first bounded chestnut." A tract of land called Heath's Range, was surveyed in 1704, "beginning at a marked black oak standing at the end of the N E line of Painter's Rest, and running thence with Painter's line W N W 435 ps. thence along and with Painter's last line S 36 W 210 ps. to the heads of the lands surveyed from the river side, then N W along and with the heads of the said lands," &c On the question, whether the expressions in the grant of Heath's Range, which calls for the W N W and the home lines of Painter's Rest, imperatively bind Heath's Range with Painter's Rest on those two lines.

The county court were of opinion that the expressions in the grant of Heath's Range were imperative, controlling both courses and distances, and that the lines of Heath's Range must be either enlarged or shortened, so as to correspond with the true location of Painter's Rest; but that the jury were to decide on the facts, and that they were the sole judges what was the true location of Painter's Rest, and to determine in what manner Heath's Range was surveyed, whether agreeably to what the defendant contends to be the true location of Painter's Rest, or whether as corresponding to the grant of that tract as located by the plaintiff. On appeal reversed.

The end of the N E line of Painter's Rest is the beginning of Heath's Range. The grant of the last tract contains a double description of the place of beginning, and that ought to be adopted, which from the expressions of the grant is most certain and most conformable to the intention of the parties to be collected from the grant. If it could be done consistently with the proof, the location ought to be made so as to comply with those descriptions. Per Chass, Ch. J.

Heath's Range must begin at the end of the N. E. line of Painter's Rest, wherever the jury may find the same to be, and bind with Painter's Rest, as expressed in the grant, unless the boundary called for as the beginning of Heath's Range is proved, in that case Heath's Range must begin at the said boundary; and if such boundary does not stand in the W N W line, then a course must be shaped in the nearest direction to strike the said W N W line, and then the first and second lines of Heath's Range must bind on Painter's Rest, as expressed in the grant. Per Dorsey, J.

The exposition of deeds or grants is solely confided to the court, and their construction must be made on the expressions of the grant, and not on facts aliunde.

If a grant is susceptible of only one location, as to the description of the land intended to be passed, it is the sole and exclusive right and power of the court to decide on its true construction; and if the call, in the opinion of the court, is imperative, it is to be gratified, and the course and distance rejected.

A tree called for is not more certain than a line of a tract of land. They are to be rendered certain by proof, and can he identified in no other way--a tree being a natural and visible object, is not more capable of proof than a line.  

COUNSEL:
Carmichael and Chambers, for the Appellant. They cited Norwood vs. Carroll et al. Lessee, (5 Harr. & Johns. 163.) Roseberry vs Carson, (in the general court for the E. S.) Trammell's Lessee vs. Nelson, 2 Harr. & M'Hen. 4. Helm's Lessee vs. Howard, Ibid 82. Paca's Lessee vs. Norwood, Ibid 175. Calhoun & Roger's Lessee vs. Hall. Ibid 416. Dougherty's Lessee vs. Denny, 3 Harr. M'Hen. 430. Hamilton's Lessee vs. Cawood & Blacklock, Ibid 437. Ashton vs. Hammond, Land. Hold. Ass. 407. Tenant vs. Hambleton, 3 Harr. & Johns. 233. Green vs. M'Clellan, (arte 200;) and Ridgely [**13]  et ux. Lessee vs. Norwood, 1 Harr. & Johns. 128.

Martin, (Attorney General) and Hammond, for the Appellee, cited Helm's Lessee vs. Howard, 2 Harr. & M'Hen. 82. Dorsey's Lessee vs. Hammond, 1 Harr. & Johns. 190. Phillip's Evid. 410. Peake's Evid. 116. 3 Bac. Ab. 388, 389. Keech's Lessee vs. Dansey, 1 Harr. & M'Hen. 21. Chamberlaine's Lessee vs. Crawford, Ibid 360. Llewellins' Lessee vs. Fendall & Simmons, Ibid 244. Ridgely et ux. Lessee vs. Norwood, 1 Harr. & Johns. 128. Martin's Lessee vs. Muse, (in the general court about 1793.) Thompson et al Lessee vs. Brown, 1 Harr. & Johns, 335. Davis et al. Lessee vs. Battee, Ibid 264 Tenant vs. Hambleton, 3 Harr. & Johns. 233. Shield's Lessee vs. Miller. (ante 1.) Dougherty's Lessee vs. Denny, 3 Harr. & M'Hen. 430. Webb's Lessee vs. Beard, 1 Harr. & Johns. 349. Smith's Lessee vs. Volgamot & White, 2 Harr. & M'Hen. 155. Calhoun & Rogers Lessee vs. Hall, Ibid 416. Rench vs. Beltzhoover, 3 Harr & Johns. 469. Johnson vs. Hawn, Land. Hold. Ass. 417. Hammond et al. Lessee vs. Norris, 2 Harr. & Johns. 130; and Hamilton's Lessee vs. Cawood & Blacklock, 3 Harr. & M'Hen. 437.  

JUDGES:
The cause was argued before CHASE, Ch. J. and BUCHANAN, JOHNSON, MARTIN,  [**14]  and DORSEY, J. MARTIN, J., concurring.  

OPINIONBY:
CHASE; BUCHANAN; JOHNSON; DORSEY 

OPINION:

 [*456]  The cause was continued under a curia until this term, when the judges delivered their opinions seriatim.
CHASE, Ch. J. The question in this case depends on what is the true location of the tract of land called Painter's Rest, resurveyed in 1678. There can be no doubt about the true construction of the grant of that land; and the position of it must depend on the finding of the jury as to the place where the third boundary, the red oak called for, stood. If at black E, then the N E line will terminate at red V, if at black B, then the N E line will end at black C.
I consider the end of the N E line of Painter's Rest, the beginning of Heath's Range, the first part.
The grant of Heath's Range contains a double description of the place of beginning, and that ought to be adopted 

 [*457]  which from the words and expressions of the grant is most certain and most conformable to the intention of the parties to be collected from the grant. The description is "beginning at a marked black oak," which forms the first part of the description, "standing at the end of the N E line [**15]  of Painter's Rest," which forms the second part of the description.
Standing thus without any additional expressions designating more certainly the place of beginning, the tree would be preferred if it did not stand at the end of the line; but the following words, "running thence with Painter's line W N W 435 perches," &c. indicate plainly and unequivocally the intention to be to fix the beginning at the end of the N E line, and entitles it to the preference, because the calls "running thence with Painter's line," which are imperative, could not be gratified without establishing the beginning at the end of the N E line, and because it was the intention to make Painter's Rest the boundary to the extent of the said two courses. If it can be done, consistent with the proof, the location ought to be made so as to comply with both descriptions. From the beginning it is to run, "thence with Painter's line W N W 435 perches, thence along and with Painter's last line S 36[degree] W 210 perches, to the heads of the lands surveyed from the river side." In case the 210 perches will not extend to the heads of the said lands, then the line is to be elongated, and the [**16]  courses varied to gratify the said calls, which are imperative.
The end of a line is as certain as the tree from whence the line is to run, and excluding the idea of the variation of the compass, must invariably terminate at the same identical spot; and there could be only one location, because the course cannot be varied, nor can the number of perches be diminished or increased.
An allowance being made for the variation of the compass, is for the sole purpose of ascertaining the true position of the land according to the original survey, and divers locations are made by the contending parties according to their different views, and the jury decide on the proof which is the true location, according to the same kind of evidence which is admissible to prove calls; and the jury make such an allowance, according to the proof, which will fix the true location thereof, there being no certain rule established by law to guide them in making such allowance.
If the tree should be considered as best entitled to a preference, then a course must be shaped from the tree to the end of the N E line, to gratify the calls in the subsequent expressions, "binding on Painter's Rest," on the same [**17]  principle that lines are elongated or shortened, and the courses varied, to comply with calls; and on the same principle, that where the beginning is a tree standing by the river side, and the tree is distant several perches from the river, and the subsequent course is then binding on the river, a course is supplied to run to the river to gratify the call.

 [*458]  It has been contended by the counsel that this is the case of a latent ambiguity, and that the tree called for, if it does not stand at the end of the N E line, is entitled to the preference; that the call for the end of the N E line is not imperative, and that the jury are at liberty to give such a location to Heath's Range, the first part, as they may think right, without regarding the calls.
In all ejectments in which the controversy is about the location of the land, the land must be located according to the different views or pretensions of the litigant parties. To support these locations the evidence is introduced on which the questions of law arise, as to the true location of the land, which must conform to the true exposition of the grant.
The plot exhibits to the view of the court the position of the land,  [**18]  the courses and distances, and calls, that the court may decide on the true construction of the grant, and the legality of the evidence offered as applicable to it, and the legal sufficiency of it. The exhibition of the plot, on which the lands are located, can in no wise limit, control or change, the legal and constitutional power of the court in deciding on the construction of the grant.
A latent ambiguity is that kind of ambiguity which is concealed or not apparent on the face or inspection of the grant, but is created by the admission of parol evidence, showing that there are two tracts of land to which the description in the grant is applicable, which renders it uncertain which was intended to pass by the grant, and that uncertainty is removed by the same kind of evidence; and so in the case where there are two trees set up to gratify the call, or two places set up as the head of the creek called for. In all these cases the jury ascertains and fixes the call according to the testimony legally admissible by the court.
If the grant, according to the principles established by the court, is susceptible of only one location, as to the description of the land intended to pass, it [**19]  is the sole and exclusive right and power of the court to decide on the true construction of the grant; and if the call, in the opinion of the court, is imperative, the call is to be gratified, and the course and distance rejected. According to these principles, which are too firmly established to be shaken or controverted, the decision of the court, in the case of Howard and Helms, (2 Harr. & M'Hen. 82,) is right, in refusing to give the instruction to the jury, which was prayed by the counsel for the plaintiff, as to the true construction of the grant of Cole's Harbour. The expressions in the grant are as follows: "Beginning at a bounded white oak, (which was admitted,) and running west to the mouth of a small gut, and over the said gut, and bounding on the said N W branch for the length of 320 perches, then N N E 275 perches, then E 320 perches, bounded on the east by a line drawn S S W to the bounded tree." It was also admitted that the N W branch was truly delineated on the plot. According to the established principle, that an imperative call must be gratified, and the course and distance 

 [*459]  rejected, if they do not correspond with the call, the plain and [**20]  obvious construction of the grant of Cole's Harbour is to run from the beginning 320 perches, bounding on the N W branch, then N N E 275 perches, then E 320 perches, bounded on the E by a line drawn S S W to the first bounded tree. This is the only construction and location of which the grant is susceptible, and the court gave the right judgment in refusing to grant the direction of the prayer of the plaintiff's counsel, which was to run course and distance from the beginning, without regarding the call, (bounding on the N W branch,) which call unquestionably is imperative. The court, in expressing their judgment, are incorrect in the reasons they assign for it. The call, bounding on the N W branch, being imperative and binding, precluded all question about the true location of Cole's Harbour, which must be according to the call, rejecting course and distance. The description of the land intended to pass by the grant is definite and certain, if the call bounding on the N W branch is allowed to be imperative, and it is capable only of one location. If there had been two streams set up as the N W branch, one party contending for one stream, and the other party for the other,  [**21]  it would have been the case of a double location, and for the jury to ascertain according to the proof to which stream the expressions in the grant were applicable.
The courts since, in many instances, have been misled by the reasoning of the court in Howard and Helms, and appear to have adopted the reasons of the court as the judgment of the court.
The case of Dorsey and Hammond, (1 H. & J. 190,) is the case of an imperative call as to the grant of Dryer's Inheritance, and capable of only one location, and so the general court decided. The court of appeals reversed the judgment, adopting the reasoning of the court in Howard and Helms, on the ground that it was capable of a double location.
In the case of Gibson's Lessee against Smith, 1 H. & J. 253, the general court decided, that running with a tract of land was imperative, and that the course must be varied to gratify it; and this judgment was affirmed by the court of appeals. The question depended on the true construction of the grant of Kirkham.
In the case of Thompson and Brown, 1 H. & J. 335, the call is for a beach tree, and is imperative. The grant of  [**22]  Anthrapp is capable of one location only.
It is observable that in the grant of Painter's Rest the red oaks, set up by the different parties, are distant from each other about two hundred perches, which is an additional proof that a tree called for is not more certain than a line of a tract. They are to be rendered certain by proof, and can be identified in no other way; a tree being a natural and visible object, is not more capable of proof than a line. The tree was visible only to the surveyor and chain-carriers at the time of the survey, and all the knowledge 

 [*460]  that can be obtained of it is derived from that source, being transmitted down by hearsay, the most vague and uncertain of all proof; and it is well known that opinions and misunderstandings of what was communicated, are substituted in the place of facts, not infrequently, which is the cause of so much contest about the tree called for. The true reason for giving the preference to calls, is assigned in the case of Norwood vs. Carroll, et al. Lessee, 5 H. & J. 155, on the principle that such construction was most beneficial for the grantee.
If the grant of Cole's Harbour, in the case [**23]  of Howard and Helms, is to be considered as a grant susceptible of a double location, and the reasoning of the court adopted as the law, then that great principle of giving a preference to calls, generally recognized, and firmly established, will be subverted, and there is no case but what must be submitted to the decision of the jury, from whose verdict there is no appeal, and the power and jurisdiction of the court to decide on the true construction of grants would be transferred to the jury. The necessary result would be uncertainty, and endless litigation; one jury would decide according to calls, another according to course and distance; ejectment would follow ejectment, until the weaker party, worn out by anxiety, and oppressed by the heavy expenses attending ejectments, must yield to his opulent and powerful neighbor.
BUCHANAN, J. a. My opinion is, that the judgment of the county court ought to be reversed. The case of Kirkpatrick's Lessee vs. Kyger, 1 H. & J. 298, Howard vs. Moale, et al. Lessee, Norwood vs. Carroll, et al. Lessee, Rench vs. Beltzhoover, Shields' Lessee vs. Miller, and Green vs. M'Clellan, all in this court, are in point, and are [**24]  cases of calls by junior tracts of land, not by natural or fixed artificial boundaries, but to lines of elder tracts.

a Buchanan, J. being prevented by indisposition from attending the court at this term, communicated this opinion in a letter to the Ch. J.

JOHNSON, J. The question submitted for the decision of the court in this case is, in what manner a tract of land called Health's Range ought to be located.
On a careful examination of all the authorities cited at the argument, and all others I have been able to find having relation to this question, it seems to me very evident that irreconcilable decisions have been made in the county court, in the general court, and also in the court of appeals.
Since I have been on the bench my invariable rule has been, in the trial of cases coming before me, first to ascertain which of the parties has the merits on his side, and having discovered that, to decide in his favour, unless I find myself hindered from doing so by certain and well established 

 [*461]   [**25]  principles of law. That cases do sometimes arise where courts of law find themselves unable to extend relief to the party justly entitled to it, because of some fixed principle of law, must be admitted by those conversant with their proceedings. The less frequent such cases occur, the more pleasing and satisfactory must be the duty of those who have the law to administer. I have, and shall, therefore, ever yield relief to the claims of justice in the absence of clear and indisputable rules of law; where those rules do exist I must, of course, be bound by them. But I do not think it my duty, as surely it is not my inclination, to shut my ears to the call of justice, unless forced to do so by law cogent and inflexible. With these preliminary remarks I will proceed to the investigation of this case.
The purchaser of land, whether from the community or an individual, ought to obtain, in justice, the very land he purchases, and if there be any mistake in the instrument of conveyance by which such purchase is intended to be consummated, by which the purchaser may be thrown off the land purchased, though he might be cast on other land belonging to the vendor at the time of the purchase, and [**26]  which the vendor may be willing to substitute for the part actually sold and intended to be conveyed, yet a power should exist somewhere by which such mistake might be rectified.
If a person affected by such a mistake is entitled to relief, and should not be compelled to take other land belonging to the vendor, how much stronger claim has he to protection, who, by a similar mistake, is prevented from obtaining any land at all--who is shut out, not only from the land he intended to purchase, but has no other land given him in lieu of it?
It is presumed that no one can question the propriety of granting relief in such cases. It may, however, be urged, that relief in cases of that description, cannot be given by courts of common law, they being bound to administer justice according to clear and established principles of law, their hands being tied by the peremptory directions of the law; and that those rules had better be adhered to, though individual loss should be thereby sustained. That there are cases where the rules of law are so rigid, as to produce individual injustice in courts of common law, and to force the parties to go elsewhere for relief, is most certain; and it is also [**27]  certain, that even in courts of equity, which are less fettered by positive rule, redress in all cases cannot be obtained. The good of the community, however, and the advancement of individual justice, are best promoted by confining those rules to cases over which their dominion is already most clearly established. With these principles for my guide, I approach the consideration of the question in this case, viz. In what manner the tract of land called Heath's Range ought to be located?
On the 31st of August 1704, Heath's Range, containing 

 [*462]  1850 acres of land, was surveyed. The description of the survey, so far as it is material to the question before the court, was as follows: "Beginning at a marked black oak standing at the end of the N E line of Painter's Rest resurveyed, and running with Painter's line W N W 435 ps. thence along and with Painter's last line, S 30[degree] W 210 ps. to the head of the lands surveyed from the river side, then N W along and with the heads of the said lands 60 ps. to the west corner of a tract called Norland, and to the east corner of another tract called Dayly's Desire, then along the head of that tract [**28]  N 62[degree] W 308 ps." &c.
The material description of Painter's Rest resurveyed, the first tract called for, is "Beginning at a bounded chestnut, and running" a course specified in the certificate, (which is immaterial to the present question,) "to a marked red oak, being the first bounded tree of the former survey, and running from thence with the river by a line drawn southerly 475 ps. to a marked red oak, from thence by a line N E 535 ps. then W N W 435 ps. and then with a straight line 735 ps. to the beginning." On comparing the above certificates it will be perceived that a material difference exists between them, in relation to the description of the spot where the N E 535 ps. line of Painter's Rest resurveyed terminated; the one describing the end by the number of perches alone, and the other calling for a marked oak standing at the end of that line; the one calling to run the next W N W line 435 ps. from the spot where the 535 ps. line ended, the other calling to run the same course 435 ps. from where the tree stood. If then, when Heath's Range was surveyed the parties were mistaken as to the place where the N E line terminated, and fixed [**29]  the boundary of the beginning of Heath's Range in the W N W line of Painter's Rest, and not at the commencement of that line, (the same being the termination of the N E line,) it must, of course, follow, that to the same extent the beginning was set along the W N W line, the corresponding line of Heath's Range must go beyond the termination of the same line of Painter's Rest, and of course the next line of Health's Range, not being at the same termination with the line of Painter's Rest, could not run with its last line the number of perches called for in the last survey.
It is contended, on the part of the appellant, that the first line of Heath's Range, no matter where the tree called for as its beginning stands, must terminate with the W N W line of Painter's Rest, without regard to the manner in which that land was run at the time Health's Range was taken up.
It is evident that if Heath's Range must be so run, and its beginning is not at the end of the N E line of Painter's Rest, the land actually surveyed, and the land designed to be purchased, will not pass by the grant. Here it may be asked, why shall the expression in the second [**30]  course, calling to run a described course with the last line of 

 [*463]  Painter's Rest resurveyed produce such an effect? Is it because thereby more precision and certainty is obtained as to the real location of the land, or is it because in doing otherwise the record is contradicted, and by letting in extrinsic circumstances, confusion and uncertainty are produced with regard to the position of the land granted? No such consequences can follow.
To my comprehension all the evils that can arise take their origin from limiting and confining a junior survey, containing a reference to the lines of an elder tract to the true location of such elder tract, and in not permitting the junior survey to embrace the land it would have comprehended, by running the elder survey at the trial of the cause, in the same way it was run when the junior survey was made. Can the W N W line in the certificate of Heath's Range, calling to run the same course and distance with Painter's Rest, deviate in the smallest degree from the same ground it would have covered, supposing the words with that line had been omitted? Were there, at the time Heath's Range was surveyed, any [**31]  marks or traces on the ground to shew at what place the line of Painter's Rest run, when Painter's Rest was taken up? Or was not the word with inserted because the commencement, course and termination of the two tracts, were supposed to be and were laid off as the same?
But the question for the decision of the court is, admitting the tree called for as the beginning of Heath's Range is not the end of the N E corner of Painter's Rest, and of course not at the commencement of the W N W line of that tract, the W N W line of Heath's Range must of necessity, (not may only,) end with it.
Again it may be asked why must it there end? Doth it give greater certainty of locations by binding the position of a junior survey so as to make it tally with the original location of the tract called for, when that original location, at the time of the last survey, was unknown to all those engaged in taking up the land? All that can be said, as to the expression running with the last line of Painter's Rest, is that having in the preceding course begun at, or supposed to have begun, run with and terminated at, the same place, the next line would run with the last line of [**32]  Painter's Rest, but as they do not terminate at the same place, they cannot run together unless the preceding line of Heath's Range is diminished in its distance 180 ps. And must the call, such as it is, produce that effect?
On principles of justice the land intended to be bought and sold ought to pass by the conveyance, but if the lines of the grant are to be diminished, the whole land cannot pass. Where are these firmly established principles to be found, that will increase or diminish the distance when no visible objects are called for and explicitly described as boundaries? But when even such visible objects are mentioned in the certificate, if not described with that absolute certainty to make them unquestionable boundaries, then, whether they bind or not must depend on the opinion of the 

 [*464]  jury, from all circumstances, ascertaining whether or not the land, when run out, extended to such visible and natural objects.
If then, on principles of equity and justice, the land intended to be purchased should pass, and that no greater certainty to the location of land is obtained by restraining the course and distance of a junior survey, calling to [**33]  run to and with the lines of an elder survey, nay, that locations are more uncertain in proportion as you drive the parties claiming under them back to more ancient dates, than they would be if the more recent surveys were allowed to control; it only remains to be considered, have the decisions given to such expressions that obligatory force that this court is now bound to yield to them? Although all the decisions are not to be reconciled, yet it appears to me, after a careful examination of them, their weight is in favour of the opinion pronounced by the judge below. The first description of cases that I shall notice are those where the jury were left to ascertain the location of the land when the expressions used, even in regard to visible natural objects, were so used as not evidently to disclose that such objects were described as bounds. In such cases, whether bounds or not, is made to depend on the running at the time the land was taken up, to be ascertained by acts of possession, and every other circumstance by which the actual running in the opinion of the jury is established. In Helms's Lessee vs. Howard, 2 H. & McH. 57, it was determined that a grant [**34]  calling to run up or along with a river, and not calling to run with or bounded by the river, was a proper subject for the consideration of the jury, whose duty it was to bind with the river or not as they should find the land to have run when taken up.
In Martin's Lessee vs. Muse, (General Court, E. S. about 1793,) a tract of land called to run to a tree, at the river side, and then down the river to a tree, a course and distance expressed. By running the course from the one tree to the other, a piece of vacant land was made to appear between the line and the river. This was also left to the jury, and there was no appeal from the decision. The general court were consistent in these decisions. In Davis Lessee vs. Batty, 1 H. & J. 264, the general court determined that Selby's Marsh bound on the river, if the jury believed that the river was truly located. The court of appeals reversed the decision, on the ground that the expressions in the grant were doubtful, and were therefore proper to be left to the jury. In Dorsey's Lessee vs. Hammond, 1 H. & J. 190, the question arose on a tract of land calling [**35]  to begin at a tree on the east side of Patuxent river, and then running into the woods a certain course to another bounded tree, and then another course to a bounded tree on Patuxent river, and then running and binding on Patuxent river a short course and distance, and then several other short courses, until they approached the beginning tree on Patuxent river; the general court determined 

 [*465]  that the first short course was bound by the river, and that all the others must run course and distance, with such variation as the jury might allow, except the last that called to run to the beginning. The court of appeals reversed the judgment, on the ground that the jury should ascertain how the land was run, and if run with the river when the land was taken up, the river must bound the survey.
Other cases exist confirmatory of the principle, that where the expressions used are doubtful, whether the object expressed was intended to bind or not, are for the consideration of the jury. On this subject only one other case will be stated. In Thompson's Lessee vs. Brown, 1 H. & J. 335, the court were called on to say, when a line called to run [**36]  from a tree on the river side up the river to another tree on the river, any land lying between the river and that line passed by the grant. The general court determined that it did not. The court of appeals reversed this opinion, the subject being proper for the consideration of the jury.
The next class of cases to be referred to are those where the lines of junior surveys call for the lines of elder tracts. These decisions, I apprehend, support the judgment pronounced by the county court in this case.
In Ridgely & wife Lessee vs. Norwood, 1 H. & J. 128, the court was called on to say, that a tract of land, called United Friendship, which called to run to and with a tract of land, called Yates his Forbearance, must run to and with that tract, those courses of United Friendship that it called to run with. The Court, Duvall and Done judges, refused to give the direction. On appeal this decision was affirmed in the court of appeals by Rumsey, Ch. J. and Mackall, Jones, Potts, and Dennis. Judges.
The next case is Tenant vs. Hambleton, 3 H. & J. 233, where this court determined, that in locating a junior survey [**37]  calling for an elder survey, that the elder must be run as it was in fact run at the time the junior survey was made. The tract called for contained calls, and therefore, if at the time the second survey was made it was run by its calls, they may govern, if not, then the courses and distances were to prevail.  Green vs. M'Clellan, 4 H. & J. 200, was where a younger tract called to begin at the end of the second line of an older tract. Baltimore county court was called on to instruct the jury, that in fixing on the beginning of the last survey they were not bound to place it at the termination of the second line of the original tract, according to its original location, but at the spot where that was found to be when the second survey was made. The court gave, in conformity, as I apprehend, with the prior decisions, the direction prayed for.
At the time when the above mentioned survey was made, (whose place of beginning was the object sought for,) the variation of the needle was not so well known as to justify a surveyor, or a court, to run the location of a tract of land, containing only courses and distances, otherwise 

 [*466]  than the needle pointed at [**38]  the time of running--of course to call for the end of such a line, containing only course and distance, was the same as to say according as the needle then pointed "et expressio eorum qui taciter insunt nihil operatur."
From the view I have taken of the decisions of the court of appeals, so far as the same has yet extended, it will appear that they have been uniformly consistent. To reconcile however all the decisions made by the general court on this subject seems to be rather a difficult task. And notwithstanding the great talents of those who presided in that court, when we consider that their memories were unaided with reports of their decisions, our surprise is not that some of them have been found to clash, but that so much consistency has been preserved. Nothing but the extensive learning which adorned that bench, could have prevented more discordant decisions. With these remarks, I come now to the review of two recent determinations of this court, on which reliance must be placed to reverse the judgment of the court below in the case before us. The first is Carroll, et al. Lessee vs. Norwood, determined at December term 1812, (5 H. & J. 155.)
It will [**39]  be perceived, that this decision was made nine years after the judgment of the court of appeals, in the case of Ridgely and wife, vs. Norwood, which was founded on the same certificate, and one year after the case of Tenant vs. Hambleton was adjudged. And to take away from the judgment in the case of Carroll vs. Norwood, its binding authority, it may be remarked, that it was bottomed on the case of Thompson vs. Brown, which had been decided by the general court in 1803, and that too at a time when that case had five years before been reversed by this court. The case then of Carroll vs. Norwood, was made to rest on a decision which had been overruled when Carroll and Norwood was determined.
In the last mentioned case the court below were called on to instruct the jury, that a tract of land called United Friendship, which called to run to and with a tract called Yates his Forbearance, several courses, when said last tract had no such courses as those called for, must, without regard to the courses of the latter certificate, expend the number of perches said to run with Yates his Forbearance, on the lines of that tract. This direction the court refused [**40]  to give, and on an appeal, their judgment was reversed; and as it appears to me in hostility to the principles, which the court of appeals had themselves previously established. But it is alleged that the decision by the general court in the case of Howard vs. Moale, et al. Lessee, which was in 1808, affirmed by this court, 2 H. & J. 249, was inconsistent with the judgment of the court below in the present case.
On an examination of the case of Howard and Moale it will be found, I think, not to interfere in the slightest degree with the case under consideration.

 [*467]  In that case the question was, in what manner the two first lines of a tract of land called David's Fancy (an escheat grant) should be located. David's Fancy, the original tract on which the escheat issued, is described "as beginning at a bounded locust tree being the north east bounded tree of David Poole's land called "Upton Court, and running by the land of said Poole, east 65 ps. to a bounded oak, then N E 150 ps. to a bounded oak of said Poole's land." David's Fancy, the escheat, calls to begin "at a locust now bounded at or very near the place where [**41]  stood a bounded locust, the original beginning tree of a tract of land called Upton Court formerly laid out for David Poole, and running thence with the land east 65 ps. (it being expressed in the certificate of the original survey to run by the land of the said Poole E 65 ps. to a bounded oak which cannot be found) thence N E 238 ps. still bounding on the said land to the N W branch of Patapsco river, it being therein expressed to run N E 150 ps. to a bounded red oak of said Poole's land, and the certificate of the said Poole's land mentioning to run that course to a bounded red oak standing by the side of the said N W branch, which oak is not known."
The general court determined that if David's Fancy is rightfully located on the plots, at the termination of the 12th line of Upton Court, and there is no evidence of the existence of any such tree as called for at the termination of the first line of David's Fancy, which would vary the same from the course and distance of the 13th line of Upton Court, that then the expressions in the escheat grant, do by operation of law, bind the escheat grant to the true location of the original tract called [**42]  David's Fancy, as to the two first lines thereof, so far as the jury find the second line of David's Fancy (the original,) did actually extend, and that the first and second lines of David's Fancy, do, by virtue of the expressions therein contained, bind the said lines on the 13th and 14th lines of Upton Court.
This decision amounts to nothing more than this, that where a junior survey calls to a tree as the beginning of another tract, and then to run with it to the 2d and 3d boundaries of the original tract, such junior survey must run to, and be governed by, the lines of the original tract, if the bounds of such original tract are known, as they also are the bounds of the junior survey, but if they are not known the junior survey must then be governed by the legal location of the elder tract, as the same can be ascertained at the trial of the cause.
What application then has that decision, to prove that a junior survey calling to run with the lines of an elder survey must, in every instance, run to, and be governed by, such survey, even when such survey contains expressions which cannot be gratified, if its location is made to correspond with that of the original [**43]  tract, or rather expressions directly inconsistent with such corresponding location.

 [*468]  Is it not manifest, that when the junior tract called for the boundary of an elder tract, and to run with that tract to another boundary, that at the time when the junior survey was made, the location of the elder tract was known, and was run with it.
If then, by lapse of time, the bounds of the one are lost, so must also be the bounds of the other, and as they would have run together if the bounds were known, so must they run together course and distance, when the bounds are lost.
The next case relied on is Rench vs. Beltzhoover, 3 H. & J. 469. In that case four bills of exceptions were taken to the opinion of the court below, which opinion, upon two of them, was reversed, and upon two affirmed. The court below determined that where one tract called for another the tract called for could only be ascertained by its patent name. In that case the defendant offered in evidence the grant of a tract of land called The Resurvey on Dawson's Strife, the twenty-first line of which was N 72 [degree] W 170 ps. to the end of 226 ps. on the second line of a tract called [**44]  Long Meadow, and running with said land W 358 ps. The 2d line of Long Meadow, (the tract called for,) had only 140 ps. but another tract called Long Meadow Enlarged, had a line with 226 ps. The plaintiff then offered to prove that by reputation Long Meadow Enlarged had acquired the name of Long Meadow; this proof the court below rejected, and that opinion was reversed.
In the third bill of exceptions the court instructed the jury, that if they found that there were not 226 ps. on the second line of Long Meadow, as called for in the grant of The Resurvey on Dawson's Strife, that then in law the call could not be gratified, and that they must run course and distance as to that line with or without variation.
In the fourth bill of exceptions the 21st line of The Resurvey on Dawson's Strife calls to terminate at the end of 226 ps. on the second line of a tract called Long Meadow, and the 22d line calling to run with said tract. The court were called on to direct the jury, that the 22d line must run with it although the line called for by the 21st course had not 226 ps. but only 140 ps. This instruction the court refused to give, they being of opinion [**45]  that the 22d was a dependant location on the 21st line, and must commence where the 21st ends, and if the 21st line could not be gratified, that then the 22d must commence and run from where the 21st ended without regard to the call. These opinions were confirmed by this court.
It seems extraordinary that this case should be relied on as directly in point against the judgment of the court below in the one now under consideration. For when they are compared, I think it will be manifest, that so far from being an authority for the appellant, it is one for the appellee.
In the case now before the court, the tract of land called Heath's Range, calls to begin at a tree standing at the end of the N E line of Painter's Rest, and running with that 

 [*469]  tract W N W 435 ps. and then the next line with the last line of the tract called for.
If then the tree, (the beginning of Heath's Range) does not stand at the end of the N E line of Painter's Rest, then that part of the description cannot be gratified if there are not 435 ps. on the W N W line of Painter's Rest. From the tree, you cannot run the number of ps. with it; and as the next line is (according to the case [**46]  of Rench vs. Reltzhoover,) made to run from the end of the 435 ps. line, it can never be made to run with the last line of Painter's Rest, no more than in the case produced, could the 22d line of The Resurvey on Dawson's Strife be made to run with Long Meadow; but the line following the W N W line of Heath's Range must commence from the end of the 435 ps. without any regard to the true legal location of the last line of Painter's Rest.
The next case that came before this court, was M'Clellan and Green, (ante 200.) And here also the judgment of the county court, pronounced in correspondence with the decisions of the court of appeals existing at the time the county court gave judgment, was reversed. The reversal, as I apprehend, was produced in a considerable degree, by the recent decision in the case of Carroll vs. Norwood. If there was no other reason to be urged against that determination, save only that such principles must for ever exclude the land intended to be or actually taken up, perhaps its authority ought to be small; but when it is remembered that it rests in a great degree on the judgment pronounced by the general court in Thompson vs.  [**47]   Brown, the reversal of which, I presume, was unknown to this court when the case of Carroll vs. Norwood was determined; when a former general court on the same identical certificate had given a different judgment, which was affirmed by the court of appeals, the decision as authority is shaken to its foundation.
The last case that has been brought to the attention of the court is that of Pumphrey vs. Ashpaw, 4 H. & J. 368. In this case land taken up when you were authorized to lay down grants of land different from the point of the needle, or in other words to allow for the variation of the compass, a tract is taken up, calling to run to the lines of another tract, as laid down with a specified variation, and with the tract certain lines with the same specific variation. Anne Arundel County Court determined, that notwithstanding the manner in which the old tract was specially described when the younger survey was made, yet that description must have no effect; that the jury must first ascertain the original location of the old tract, and the last must be governed by it.
In 1818 this judgment was reversed by this court, and by this reversal it would seem [**48]  that the decision of this court in the case of Green vs. M'Clellan, is greatly weakened; for the only difference as appears to me is that 

 [*470]  in the case of Pumphrey vs. Ashpaw, the certificate expresses what was as clearly implied in Green vs. M'Clellan.
In forming opinions on the effect of grants having relation to prior surveys, we ought steadily to keep in mind that it is the last and not the first survey the construction of which is sought; it is the confounding them together in the minds of those whose province it is to expound them, that has caused, as I believe, a difference of opinion.
As to the general rules of construction, that you cannot, by matter extrinsic to the grant or record, contradict it, whether the extrinsic matter depends on other grants or records, upon the most authentic ancient charts or surveys, or on the most conclusive parol proof, is conceded; the difference of opinion arises in the application. If the ancient grant is the one to be expounded, then its exposition cannot be influenced by any of those circumstances mentioned; but we have not the survey of the first land under consideration, it is not the grant [**49]  of Painter's Rest resurveyed, but of Heath's Range, a subsequent survey, that is now to be construed; and the construction to be applied to it can never, in the slightest degree, influence the construction of Painter's Rest.
The decision of this court in Pumphrey vs. Ashpaw, (which took place after all the arguments advanced in this case were heard, and the bearing of all the authorities on the subject duly considered,) in my opinion has established the correct principle, to wit, that the junior survey must be run as it was run when the land was taken up, if there are any expressions in the junior survey to permit such a location.
In that case the tract called for was taken up a great many years before the survey of the land, the certificate and grant for which were under consideration; but as that certificate described the manner in which the original was run, it was consistent with the second grant to give it that location, although in doing so the ancient survey would not be run as it was when taken up. The junior survey did not call for it, according to its original or primitive location, it called for it as run when the junior tract was taken [**50]  up; with its first position the last tract had no connection, and therefore, when the land comprehended in the last survey was the subject under consideration, so far from being contradictory to, it was perfectly consistent with its certificate to locate the first survey in the manner described by the last.
A similar course of reasoning, I should have supposed, ought to have produced a different judgment than was pronounced in the case of Green vs. M'Clellan. There the place sought for was the beginning of a tract of land called M'Clellan's First Venture, which did not call for any visible object, but described its place of beginning as being at the end of the second line of a tract called Come by Chance. At the time M'Clellan's survey was made, the end of the second line of Come by Chance could only have been ascertained 

 [*471]  by running the actual courses and distances as described in the certificate. At that time if an ejectment had been brought for Come by Chance, the patent in support of the action could not have been read if the land had been laid down on the plots in the cause with any the least variation from the course [**51]  and distance described. Nay, after M'Clellan's First Venture had been taken up, and before the law passed permitting an allowance to be made for the variation of the needle, had an action of ejectment been brought for that land, its beginning could only be ascertained by running the two first lines of Come by Chance as the needle then pointed. The certificate of M'Clellan's land does not describe its place of beginning to be at the end of the second line of the other tract, according to its primitive location; nor doth it describe it as then ascertained by running at the point of the needle; but as it could not have been run except in that manner, the beginning, I humbly apprehend, should have been ascertained by fixing on the spot where the second line then terminated.
The only remark to be urged against the correctness of the reasons already advanced is, that the defendant's survey must be run according to the original location of the elder tract, or otherwise the tract called for is made to have two positions or locations.
The objection seems to me to have been already substantially answered. But is there any thing inconsistent with the second grant, to locate [**52]  it as actually run, when the grant contains no expressions inconsistent with such a location?
The subsequent survey does not declare that the land called for was run by its original legal location; and all surveys now, and all containing calls, and courses and distances, before the variation of the needle was admitted to exist, have two legal locations, and which shall prevail depends on the existence of facts at the time the survey is called in question. Where there are calls to natural visible objects, and they can be proved, the courses and distances must yield to them; where the calls cannot be proved, the courses and distances govern.
Now, if such must be the case when the extent of the land comprehended in the original grant was the question under the consideration of a court and jury, ought not the same principles to apply to a junior survey, calling for such elder survey, where the bounds of the elder survey were unknown at the time the second survey was made?
The same course of reasoning is applicable, in as strong a degree, to the cause now before the court.
Heath's Range calls to "begin at an oak standing at the end of the N E line of Painter's Rest resurveyed,  [**53]   and to run with Painter's line W N W 435 ps." and then another course with Painter's last line. It will be observed, that no tree is called for in the certificate of Painter's land at the end of the N E line. When Heath's Range was run the tree called for as its beginning is also described 

 [*472]  as standing at the end of the N E line of the other land. If you make the place where the tree stands the end of the N E line, then there exists a W N W line 435 ps. of Painter's land, with which the W N W line of Heath's Range can run, and then the next line of Heath's Range will run with the last line of Painter's land. But if the tree is not at the beginning of the W N W line of Painter's land, but 180 ps. on it, then will Heath's Range extend 180 ps. beyond the W N W line of Painter's Rest, and of course the next line cannot run with the last line of that survey. The land therefore called Painter's Rest Resurveyed, as described in Heath's Range, is that tract terminating the N E line at the oak; is that tract running a W N W line 435 ps. from the oak--and its last line to the beginning, presenting corresponding lines with  [**54]  Heath's survey.
But we have seen, by the decision of this court in the case of Pumphrey vs. Ashpaw, that where the original survey called for is described, (in the certificate of the tract calling for it,) as running in a specified manner, in locating the junior tract the first survey must be laid down to identify the last land taken up as it was run at the time of the last survey; and therefore, as the certificate of Heath's Range, by calling for a tree standing at the end of the N E line of Painter's land, when no such tree is called for in that certificate, the court below did not err when they directed the jury, that if they should believe, from the evidence in the cause, that at the time Heath's Range was surveyed the W N W line of Painter's Rest run from the oak, and then the last line to the beginning, and that the two first lines of Heath's Range run accordingly with them, that then that was the legal location of the last mentioned tract.
MARTIN, J. I concur in the opinion that the judgment of the court below in this case be reversed.
DORSEY, J. The tract of land called Heath's Range, according to its certificate bearing date the 31st of August [**55]  1704, begins at a marked black oak standing at the end of the N E line of Painter's Rest, resurveyed for Richard Painter the 17th of December 1678, and running thence with Painter's line, W N W 435 perches, thence along and with Painter's last line, S 36 [decree] W 210 perches, to the head of the lands surveyed from the river side, then N W along and with the heads of said lands.
Painter's Rest, surveyed for Richard Painter on the 17th of December 1678, after running two courses, which are immaterial to the decision of the question before the court, begins for the third line at a marked red oak, the boundary of the second line, and runs from the said red oak by a line drawn N E 535 perches, and from the end of the N E line, by a line drawn W N W 435 perches, and from the end of the W N W line, with a straight line 730 perches, to the beginning.

 [*473]  The question submitted to the court is this--Do the expressions in the certificate of Heath's Range, which call for the W N W and the home lines of Painter's Rest, imperatively bind Heath's Range with Painter's Rest on those two lines?
I deem it unnecessary to examine the authorities which [**56]  have been cited by the counsel on either side, as many of them are contradictory, and few of them profess to give the reasons on which the decisions were made.
I hold it to be an unquestionable principle of law, that the exposition of deeds or grants is solely confided to the court, and that their construction must be made on the terms or expressions of the grant, and not on facts aliunde.
Every grant presents two considerations to the court, the thing or corpus intended to be conveyed, and the quality of the estate in the thing. The description of the subject of the grant, as well as the estate therein intended to be conveyed, is part of the grant. That the court alone can decide on the nature of the estate, will not be controverted; but as the court cannot decide on the quality of the estate until the certainty of the subject matter thereof is ascertained, it would seem to follow, that the description of the thing is to be judged of by the court, especially as both of them are parts of the same contract.
It is a maxim of our law, that the subject matter of the grant must be described by intelligible and apt terms, or the deed is void; and who declares the grant void? The court;  [**57]  but if the court were not the sole and exclusive judges of the description, they would usurp authority by exercising this jurisdiction.
When a line has course and distance, and a call, if both cannot be gratified, one or the other must yield, or the deed will be void for repugnancy; and therefore, the courts of this state have decided, that the call shall be gratified at the expense of the course and distance. Calls are of different kinds, as of a tree, a stone, or a tract of land, and it would be difficult to assign a reason why the two first should be imperative, and the last not so. The true position of the tract of land called for, is matter of as much certainty as a tree.
By calling for another tract of land, and running with it, the party, if we may judge from the certificate, (and we have no right to seek for his intention elsewhere,) certainly intended to bind his land with the elder survey, and if such was his intention apparent on the face of the grant, we are bound to gratify it. To submit this question of intention to the jury, to be decided on testimony de hors the grant, would be productive of great uncertainty and endless controversy.
I am therefore of opinion,  [**58]  that Heath's Range must begin at the end of the north east line of Painter's Rest, wherever the jury may find the same to be, and bind with Painter's Rest as expressed in the certificate, unless the boundary called for as the beginning of Heath's Range is 

 [*474]  proved, in that case Heath's Range must begin at the said boundary, (it being the object called for, and the expression standing at the end of the north east line, being matter of description;) and if such boundary does not stand in the W N W line, then a course must be shaped in the nearest direction to strike the said W N W line, and then the first and second lines of Heath's Range must bind on Painter's Rest, as expressed in the certificate. The judgment of the court below ought to be reversed.
JUDGMENT REVERSED.  

22 of 22 DOCUMENTS 

FISHWICK'S Adm'r. VS. SEWELL.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

4 H. & J. 393; 1818 Md. LEXIS 20 

December Term, 1815, Argued 

June, 1818, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Prince George's County Court. An action of trover was brought on the 15th of June 1812, for the value of certain negro slaves, and a spinet. The declaration contained two counts. The first stated, that Jane Fishwick, in her life-time, on the 1st of January 1765, was possessed of the following negroes to wit: Dinah, of the price of $ 300; Fanny, of, &c. [Enumerating 17 other negroes, and their prices.] And also one spinet of the value of, &c. as of her own proper goods and chattels; and being so possessed thereof, afterwards, on the 1st of March in the said year, died intestate; after whose death the said property came to the hands and possession of the defendant, (now appellee.) And afterwards on the 6th of May 1812, administration of all and singular the goods, &c. which were of the said Jane at the time of her death, was by the Orphans Court of Prince George's county aforesaid, in due form of law granted to the plaintiff, (now appellant;) and the defendant, although he very well knew the said property was the property of the said Jane in her life-time, and at the time of her death and of right to belong to the plaintiff after the decease of the said Jane, by reason [**2]  of said administration, nevertheless contriving, &c. [Setting out the demand and conversion, &c.] The second count stated, that the said Jane in her life-time, to wit, on the 1st of January 1765, was also possessed of the following property, to wit, a negro woman named Dinah, of the price of, &c. and a negro woman named Fanny, of, &c. as of her own proper goods and chattels; and being so possessed thereof, afterwards, to wit, on the 1st of March in the last mentioned year, departed this life intestate. And whereas the said Dinah, after the death of the said Jane, and before the granting of any letters of administration to the plaintiff, had issue, to wit, Phillis, of the price of, &c. which said negroes named Phillis, &c. the proper goods and chattels of the said Jane, together with the said Dinah and Fanny, came into the hands and possession of the defendant after the death of the said Jane. And afterwards, &c. [Setting out the administration granted to the plaintiff, the demand and conversion, &c.] The defendant pleaded not guilty, and not guilty within three years, &c. At the trial in the county court at April term 1814, the plaintiff, to prove property in the negroes mentioned [**3]  in the declaration, offered in evidence the depositions of sundry witnesses, which it was agreed between the parties should be read in evidence, so far as they were competent and legal testimony. 1. Eleanor Clugett. She deposed that she knew Jane Fishwick, and that she lived in the family of Robert Darnall, deceased, and the deponent believed died there; that she saw her there when she was sick, a few days before her death. She knew a female slave named Dinah, said to be in the possession of the defendant. That Dinah was called and considered by the family of the late R. Darnall the servant of Miss Fishwick, and she waited on her in her room as her servant, but how or in what manner she claimed or owned the said servant, the deponent did not know. That she was intimate in the family of R. Darnall. That she was not with Miss Fishwick at the time of her death, and knew nothing in regard to her funeral expenses. 2. Hannah West. She deposed that she knew a female slave named Dinah, in the possession of the defendant. She did not know who was the owner of Dinah, but she came over from the Eastern Shore with R. Darnall, and his wife. That Miss Fishwick lived with R. Darnall, deceased, and [**4]  died at his house. 3. Doctor William Beanes. He deposed that he was acquainted with Miss Fishwick when she was from the age of 12 or 13 years, to about 20 years or upwards; she resided with Robert Darnall and wife, and was upwards of twenty years of age when she died, which was about the year 1775. He knew negro Dinah who resided in the family of R. Darnall. Since Miss Fishwick's death he heard it frequently said, and probably in the family, that Dinah was the slave of Miss Fishwick. To the best of his recollection he had heard the defendant say that Mr. Darnall had written to Mr. Muir to take the property, and pay the debts due from Miss Fishwick, stating that the debts due to Mr. Darnall were more than the value of the property, but that he received no answer from Mr. Muir. He never heard of any other property, but negro Dinah, in Darnall's possession, that belonged to Miss Fishwick; that he held her as his own. The deponent's inference, from his casual conversation with the defendant, the very words and particulars of which he could not recollect, was that the defendant claimed her on account of the debts due Mr. Darnall from Miss Fishwick. That from a conversation he had with the [**5]  defendant, the defendant informed him, that Mr. Darnall, when he heard that some claim was set up by Mrs. Hepburn to negro Dinah, told him that probably some claim might be set up after his death, that he had as much right to negro Dinah as to any other property on his plantation, without stating any reason or foundation for the claim. This deponent further saith, that Miss Fishwick was the daughter of Mrs. Darnall; that Miss Fishwick had no brother or sister of the whole blood, but a half brother, a Mr. Nevitt, the father of a Mrs. Steele, and two half sisters, Mrs. Green and Mrs. Muir, who were older than Miss Fishwick, but the deponent did not know whether they were living or not at the time of Miss Fishwick's death. That he was not intimate in the family of Mr. Darnall until after the death of Miss Fishwick. He never heard the defendant say or pretend that Miss Fishwick gave Dinah to Mr. Darnall or her mother. The inference he drew from the conversations he had with the defendant, was that the claim of Mr. Darnall was founded on what Mr. Darnall claimed from Miss Fishwick, but he never heard positively on what ground, Mr. Darnall, or the defendant, claimed Dinah. That ever since [**6]  he knew Dinah, during the life of Mr. Darnall, she was held by him as his property; and she, and her descendants, have been in the possession of the defendant, and held by him as his property, ever since the death of Mr. Darnall. He has heard that Mr. Darnall acquired considerable property by his intermarriage with Mrs. Darnall. 4. Richard Burgess. He deposed, that at the request of the plaintiff he delivered the defendant a written demand for sundry negroes, claimed by the plaintiff as administrator of Miss Fishwick, in the possession of the defendant, of which a copy of a letter, now shewn to him, was a true copy, dated the 15th of June 1812, among which negroes was a negro woman by the name of Dinah, who he thinks the defendant said was the mother or grand-mother of all the others claimed, except one, and which the deponent believes was a female, whose name he does not now recollect. That the defendant refused to deliver said negroes, and denied all claim that the plaintiff had thereto. That the defendant, at the same time desired him to tell the plaintiff that he had no property of Miss Fishwick's in his hands. The plaintiff also produced as a witness Dr. William Hill, who deposed [**7]  that the defendant had declared to him. (during conversations he had about the claim set up by the Hepburns in right of Miss Fishwick to the negro woman Dinah.) that the said Hepburns had been talking about and claiming Dinah a long while; that his uncle, meaning Robert Darnall, had a claim against the plaintiff's intestate; but the witness had never heard the defendant say that negro Dinah, in the declaration mentioned, was the property of the plaintiff's intestate; and that the defendant also said, in conversations about the claim of the Hepburns to Dinah, that his uncle Robert Darnall had claims against the estate of Miss Fishwick which would cover the whole of the property left by her. That the Hepburns had no right to Dinah, but even if they had a right to her it was barred by the statute of limitations. That the defendant had told the witness that a certain Samuel J. Coolidge, who had intermarried with the daughter of Mrs. Jane Hepburn, one of the legal representatives of the plaintiff's intestate, had set up a claim to negro Dinah, and her descendants, and that a claim had also been set up by the said Jane Hepburn some years since, but that they had no title; and that Coolidge [**8]  told the witness that he had thoughts of instituting a suit against the defendant, but he found he could not substantiate his claim, and besides, the property, if recovered, would be divided amongst so many that it was not of much consequence. The plaintiff also proved, by a competent witness, that negro Dinah, mentioned in the declaration, had seven children, to wit, Fanny, Patt, &c. named in the declaration, all of whom were living, and were born after the death of the plaintiff's intestate; that John, &c. are the children of Fanny; that Isaac, Nancy, &c. are the children of Patt; and that Harriott is the daughter of Nancy, who is deceased, and who was the daughter of Dinah. The plaintiff also offered in evidence, by the aforesaid Richard Burgess, that he the witness called on the defendant, and by the following letter from the plaintiff to the defendant, dated the 15th of June 1812, demanded the negroes mentioned in the declaration, viz. "I am authorized by the orphans court of Prince-George's county, as administrator of Miss Jane Fishwick, late of said county, deceased, to ask and demand of you her personal estate, consisting of the following property, to wit. Dinah, Fanny, Phillis,  [**9]  John, Paul, Moses. Susannah, Pat, Isaac, Charles, Nelly, Sally, John, Sampson, Tom, Nancy, Kit, Anna and Harriott, and one spinet, and any other property which you may have in your possession belonging to said Miss Fishwick, and to inform me by Mr. Richard Burgess in writing, whether you will deliver them, and if not, you reasons for detaining them." Among which negroes was negro Dinah, whom the witness thinks the defendant said was the mother or grandmother of all the others claimed, except one, which the witness believed was a female, but her name he did not recollect. That the defendant refused to deliver said negroes, and denied all claim that the plaintiff had thereto. That the defendant, at the same time desired the witness to tell the plaintiff that he had no property of Miss Fishwick's in his hands. The witness did not recollect that the defendant told him that he had an account against Miss Fishwick which would swallow up the whole of the estate left by her in his possession. That the defendant said, (speaking on the subject of his claim.) that the expenses of the funeral would amount to more than the value of the property. The plaintiff also offered in evidence by John Smith [**10]  Brookes, who deposed that Samuel Hepburn, the father of the plaintiff, was born and lived all his life in the neighborhood of Robert Darnall's residence in Prince-George's county, and was one of the commissioners of the tax for said county, and also clerk to the commissioners of the tax at the time that Darnall was one of the commissioners. That Mrs. Darnall, at the time of her marriage with Mr. Darnall, was much older than he was, and was reputed very rich, and it was generally believed that he had acquired considerable property by the marriage. That Mr. Darnall had no children by Mrs. Darnall. That Mr. Coolidge married a sister of the plaintiff, a daughter of Jane Hepburn, (who is yet living,) who was married between the age of eighteen and twenty-one years, and resided in Prince-George's county from the time of her marriage until one or two years ago. That Samuel Hepburn, died seven or eight years ago. It was proved by the records of the commissioners of the tax for Prince-George's county, that Samuel Hepburn, stated to have married Jane Hepburn, (who was the daughter of Mrs. Muir, who was proved by Doctor Beanes, in his deposition, to have been one of the half sisters of Jane Fishwick,  [**11]  ) was a commissioner of the tax for the said county, from the year 1786 till 1789, and acted as such; and from 1790 until his death, was the clerk to the commissioners of the tax for said county, and acted as such. The defendant proved by Joshua Peake, a witness produced and sworn by the plaintiff, that he the witness was overseer for Robert Darnall seventeen years ago, and continued his overseer until his death, which happened in 1803, and that he has ever since been acting as overseer for the defendant, to whom the said Darnall, by his will devised the estate superintended by the witness; that when he went upon the farm, Dinah, and such of her descendants before named as were born, were on the farm, were considered the negroes of said Darnall, were claimed and used by him as his own property, and continued in his use and possession until his death; that until his death they were assessed to said Darnall, who paid the county charges on them; and all of said negroes that were born before the death of Darnall were always considered, claimed and used by him as his own property. That upon the death of Darnall, those negroes were taken possession of by the defendant as his property, claiming [**12]  the same under the will of Darnall, and the defendant has ever since had the use and undisturbed possession of the negroes, and of all their issue born since the death of Darnall. That ever since the death of the latter the whole of the negroes have been assessed to, and the taxes paid by the defendant. The plaintiff then gave in evidence the letters of administration granted to him by the orphans court of Prince-George's county, on the estate of Jane Fishwick, dated the 6th of May 1812; and proved by the testimony of Trueman Tyler, register of the orphans court, that it did not appear from the records and papers in his office, that letters testamentary or of administration were ever before granted to any other person on that estate. The defendant then prayed the opinion of the court, and their instruction to the jury, that upon the evidence so offered and delivered, the jury may and ought to presume that Robert Darnall, in his lifetime, and the defendant claiming under him, and holding the slaves in question, held the same by a valid and sufficient title. And the Court, [Johnson, Ch. J. and Key, A. J.] were of opinion, and so directed the jury, that from the facts and circumstances [**13]  stated, if the jury find them to be true, they might and ought to presume, that if the negro woman named Dinah, in the statement mentioned, ever was the property of the plaintiff's intestate, that she was legally transferred to the defendant, or to those under whom he claims, and that the plaintiff, on these facts and circumstances, cannot support this action. The plaintiff excepted; and the verdict and judgment being against him, he appealed to this court.

A new trial was afterwards had in the county court under the procedendo, at September term 1816.

1. The plaintiff offered in evidence the depositions of the witnesses, and the testimony by him offered in evidence at the former trial, and which are before stated. He also offered in evidence the following letter, proved to have been written by Robert Darnall, mentioned in the deposition of Doctor William Beanes, dated the 28th of June 1782, viz. "Yours of the 13th of May was this instant delivered to me by Mrs. Hepburn. The estate of Miss Fishwick, I have been ever ready (and am so still,) to deliver up to any person that will take out letters on it; he or they paying me my account against that estate. You will be pleased [**14]  to observe, that exclusive of my claim, I am entitled to a child's part of the personal estate. If you doubt this, I would have you satisfy yourself in this particular before you come over, by taking the advice of counsel, as I have already done. God be praised, we can do very well without Dinah; her work has not been equal to the charge of maintaining four small children. I think, as you do, that the estate has been long unsettled, and that it is high time something was done in it. If it is delayed any longer than this fall, I myself must do something in it, for my own justification." The plaintiff further proved, that the several negroes mentioned in the declaration, except Dinah, were the descendants of Dinah, mentioned therein and in the depositions given in evidence, and were born after the death of J. Fishwick, and that they and Dinah were held by R. Darnall in his life-time, and until his death, and by the defendant since his death. He also gave in evidence the will of R. Darnall, dated the 20th December 1801, constituting the defendant his executor and residuary legatee; and proved that the said negroes were, at the time of Darnall's death, in his possession, and with the other [**15]  property were taken into the possession of the defendant, who has ever since held them in his possession. He also offered in evidence the will of Ann Loockerman, dated the 2d of June 1755, bequeathing to her niece Jane Fishwick, the child her negro wench Dido went with, be it boy or girl, to her and her heirs forever. Also the will of William Fishwick, dated the 20th of January 1753, bequeathing to his daughter Jinny Fishwick £  250, and devising his whole estate, both real and personal, to his wife for life, and after her death to his daughter Jinny, and the heirs of her body lawfully begotten, &c. and constituting his wife his executrix. He also offered in evidence an additional account returned to the prerogative court by R. Darnall, who had intermarried with the executrix of W. Fishwick, dated the 21st of May 1755, charging themselves with the balance of a former account passed by the executrix on the 22d of May 1754, amounting to 2952 Ibs. of tobacco, and £  3551 18 1 currency, also with sundry sums of money and tobacco since received, amounting, together with the above balance, to 8805 lbs. of tobacco, and £  3964 13 4 currency, and claiming credits for payments, disbursements [**16]  and commission, amounting to 1504 lbs. of tobacco, £  352 6 11 sterling, and £  57 7 6 currency. He also proved, that Dinah, in the declaration named, was the slave Dinah mentioned in the deposition of E. Clagett, and in the letter of Darnall, as the property of J. Fishwick. The defendant then gave in evidence, by the testimony of T. Tyler, that the witness heard a conversation at various times between S Hepburn, (father of the plaintiff, who departed this life before the granting of the letters of administration to the plaintiff,) and the wife of said Hepburn, on the subject of the claim of the representatives of J. Fishwick to Dinah, and that the said Hepburn declined administering on her estate, and gave as reasons for declining, the number of the parties interested in her estate, the small value of the property, the expense of getting out letters of administration and bringing suit for the property; that he had no money to spare for such expenses; the claims of Mr. Darnall on the estate, and the statute of limitations, which would bar the claim of her representatives to her property. He then gave in evidence sundry letters from J. Muir, the husband of S. Muir, who was one of the [**17]  half sisters of J. Fishwick, and the person to whom the aforementioned letter of Darnall was addressed, viz. one dated the 7th of January 1775, "I am informed by your letter that Doctor Digges has proved his account against Jane Fishwick, deceased, and impatient for his money, which he or you shall have as soon as opportunity serves to send it to Doctor Murray in Annapolis, provided you have not already administered, which I am told there is not any occasion for, as the parties are all of age excepting P. Nevitt, and Doctor Murray represents her as guardian. Please write me on your receiving of this whether you have administered or not, and by that time I expect to receive a letter from Doctor Murray, to whom I have written on the subject." Another dated the 13th of May 1782. "The little estate of Miss Jane Fishwick, that is her negroes, &c. has a long time lain unsettled, although Doctor Murray has often been applying to me requesting that I would administer on it. The great distance, and perhaps not being able to get security as a stranger, and knowing that Mrs. Darnall could not do without Dinah, has been the occasion of the long delay. To remedy which have spoken to Mr. Hepburn [**18]  to have something done in it, which if he declines, must endeavour to come over; previous to which should be glad you would inform me by letter, what you propose doing." Another dated the 5th of May 1786. "You say as for the small estate of Miss Fishwick you have paid it long since agreeably to my letter. Should be glad to know by first opportunity to whom it has been paid; if it has, there has never been any thing yet received by your humble servant." The defendant then also gave in evidence, the following account, claimed by Darnall in his life-time, against the estate of J. Fishwick, and copied from Darnall's books, viz.

________________________________________________________________________________
"Dr. The estate of Jane Fishwick, Contra.	Cr.	
To paid Doct. Digges, account proved,	29   9  6	
To cash paid Doctors Scott & Murray for a visit,	6   0  0	
To funeral expenses,	  10  0	
To one fourth part of said wench and child,	20   0  0	
To your board and education, &c. for 20 years.	
To interest till paid.	
________________________________________________________________________________

________________________________________________________________________________
Cr.	
1775.	By one mulatto wench called Dinah, with	
	 a child at her breast, value,	80   0  0	
________________________________________________________________________________

E. E.     p.     R. Darnall."

He also read in evidence the deposition [**19]  of Patrick Sim, who deposed that J. Fishwick was the daughter of Mrs. Darnall, wife of R. Darnall. That he thinks Miss Fishwick died in 1774. He sailed for England in September of that year, and he thought she died a little before. He understood she was dependent upon her step-father and her mother for her support. He also offered in evidence the account of Doctor Digges, and the payment thereof by Darnall on the 12th of September 1775; and proved by T. Tyler, that all the negroes in the possession of the defendant had been for many years past, ever since the death of Darnall, assessed to him by the commissioners of the tax for Prince George's county, and the assessments paid by him; but the assessment lists did not specify or contain the names of the slaves assessed. The defendant then prayed the court to give the following instruction and opinion to the jury: If the jury should be of opinion from the testimony offered to them, that shortly after the death of the plaintiff's intestate, Darnall took possession of negro Dinah, and such of her children as were then born, claiming a right to hold them on account of claims which he had against the estate, and debts due from the estate,  [**20]  and paid by him after her death, and refusing to deliver them up, except upon payment of said claims; and that the said claims, and Darnall's refusal to deliver up the property, were made known to the representatives of the plaintiff's intestate as early as the year 1782, and that after that time Darnall claimed, held and used the said negroes as his own, denying all title of the representatives of the deceased to the said negroes, or any of them; and that he continued to use and exercise every act of ownership over the negroes until the time of his death, which happened in the year 1803; and that after his death the defendant, who was his residuary legatee, took possession of Dinah and the whole of her issue, held and used them as his property, denying all title of any person claiming under J. Fishwick, and that he had the peaceable and undisturbed possession of the said negroes in manner aforesaid, from the year 1803 until the demand proved to have been made by the plaintiff, that then the plaintiff cannot recover any damages under the second issue joined for the conversion of Dinah and her issue. But the Court, [Key and Plater, A. J.] refused to give this instruction to the jury.  [**21]  The defendant excepted.

2. The plaintiff then offered in evidence the account hereinbefore mentioned to have been returned to the prerogative court by R. Darnall, who had married the executrix on the estate of W. Fishwick, certified under seal by the register of wills of Dorchester county. To the admission of which account in evidence the defendant objected. But the Court, [Johnson, Ch. J. and Key and Plater, A. J.] overruled the objection, and admitted the account to be given in evidence. The defendant excepted.

3. The defendant then prayed the opinion of the court and their direction to the jury, that if they found the evidence to be true, as well on the part of the plaintiff as of the defendant, that then they might presume from such evidence, that Darnall, with the assent of the persons entitled to distribution of the estate of J. Fishwick, took upon himself the executorship, and fully administered all the assets of the said J. Fishwick by paying debts and funeral charges to the value of such assets, and that the plaintiff was not therefore entitled to recover. Which opinion the Court, [Key and Plater, A. J.] refused to give. The defendant excepted.

4. The defendant [**22]  then prayed the opinion of the court to the jury, that if the jury found the evidence to be true, that then the plaintiff was not entitled to recover against the defendant the value of Dinah and all her descendants named in the declaration. This opinion the Court, [Key and Plater, A. J.] refused to give. The defendant excepted.

5. The plaintiff offered in evidence under the second issue joined, the letters of administration granted to him as hereinbefore set forth; and offered to prove by T. Tyler, register of wills for Prince-George's county, that it did not appear from the records and papers in the office of the orphans court of the said county, that letters testamentary or of administration were ever granted to any other than the plaintiff on the estate of J. Fishwick. The witness further proved that he had not found in the course of his researches that any summons was ever issued to any of the representatives of J. Fishwick to appear and take out letters on the said estate, or that any notice was given to them of any application by the plaintiff, or any other person, for letters of administration on the said estate. That the witness had been in the office of register of [**23]  wills for the said county as a deputy, or as register, for the last twenty years, and was confident that no summons had within that time been issued for the representatives or any creditor of J. Fishwick to appear and take out letters of administration, or any notice given them of any application for such letters by the plaintiff. That letters of administration were granted to the plaintiff by one of the deputies in the office, during the recess of the court, and in the absence of the witness. The defendant then swore J. Burch, the deputy who had granted the said letters, who stated that the said letters were granted by him in the recess, and without the authority of the orphans court made known to him by the court in that particular case, but according to the usual practice of the office, which practice was known to and approved by the court. And the records of the court were produced, whereby it appeared that the said court was not in session on the day of issuing of the said letters of administration to the plaintiff, and it did not appear that any application for said letters was made to the said court; but the plaintiff had applied to the register, during the recess of the court,  [**24]  some weeks before the granting the same, for letters of administration on the said estate. The defendant objected to the admissibility of this evidence under the second issue joined. But the Court [Johnson, Ch. J. and Key and Plater, A. J.] were of opinion that the said evidence, and the said letters of administration, were admissible, and allowed the same to be given in evidence under the second issue joined. The defendant excepted.

6. The defendant then offered in evidence the account or claim of Doctor Digges against J. Fishwick before mentioned, and proved that the amount thereof was paid by Darnall on the 12th of September 1775. He also offered other evidence to prove to the jury the payment by Darnall of other claims against the estate of J. Fishwick; and then prayed the court to instruct the jury, that it was competent to them to recoup in damages, the amount of such payments made by Darnall to the creditors of J. Fishwick, so far as the jury were satisfied that such payments had been made by Darnall. But the Court, [Johnson, Ch. J. and Key and Plater, A. J.] refused to give this instruction, and were of opinion that no such discounts could be admitted, or any deduction [**25]  from the damages for the conversion of the property claimed in the declaration could be made by the jury. The defendant excepted; and the verdict and judgment being against him, he appealed to this court.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

In an action of trover, brought by an administrator for the conversion of certain negro slaves, the declaration stated that J F. the intestate, died possessed of a negro woman named Dinah, in 1765; that Dinah and her issue came to the possession of the defendant, and that administration was granted to the plaintiff on the estate of J F in 1812. The county court directed the jury, that from the evidence in the cause, if they found it to be true, they might and ought to presume, that if Dinah ever was the property of J F, she was legally transferred to the defendant, or those under whom he claimed On appeal--Held, that such evidence was sufficient to account for the delay which took place before the issuing the letters of administration to the plaintiff, and to repel the presumption that Dinah was legally transferred to the defendant, or those under whom he claimed.

No right of action vested in any person to sustain an action of trover for Dinah, and her descendants, before letters of administration were granted to the plaintiff The act of limitations could not begin to operate before such letters were taken out, and did not attach until demand and refusal.

An additional account returned to the prerogative court in 1755 by R D, (under whom the defendant claimed Dinah and her issue,) who had intermarried with the mother of J F, and who was the executrix of the father of J F, certified by the register of wills under seal, permitted to be read in evidence.

Where the evidence and length of time did not warrant the presumption that R D, with the assent of the persons entitled to distribution of the estate of J F, took upon himself the executorship, and fully administered all the assets of J F, by paying debts, &c. to the value of such assets

The plaintiff is entitled to recover damages to the amount of the value of Dinah, and her descendants, together with damages for the detention from the time of the demand and refusal proved

Certain facts declared to be inadmissible as evidence, the direct tendency of which was to impeach and nullify the letters of administration granted to the plaintiff, by showing that they were not granted by the Orphans court, but by a deputy clerk in the office of the register of wills, to whom the court could not delegate any such authority--Held, that such letters were legally efficient, until revoked, being clothed with all the requisite legal solemnities to communicate power and authority to the plaintiff to administer on the estate of J F.

Held also, that a claim against the estate of J F, paid by R D, could not be recouped from the damages for the conversion of the negroes claimed by the plaintiff.

A trustee cannot avail himself of the act of limitations against his cestui que trust.  

COUNSEL:
Martin and F. S. Key, for the Appellant, referred to 2 Saund, 175, (notes) Mundell's Lessee vs. Clerklee, 3 Harr. & Johns. 462; and Cockey's Lessee vs. Smith, Ibid 20.

Pinkney and Magruder, for the Appellee, cited Eldridge vs. Knott, 1 Cowp. 215; and Carroll, et al. Lessee vs. Norwood, 4 Harr. & M'Hen. 288.

Magruder, for Sewell the Appellant. On the first bill of exceptions. The evidence stated shows a total abandonment of the property, and no steps taken to recover the negroes on the part of the plaintiff, or those interested therein, for upwards of 30 years. The question is, whether the possession of the property will not avail the defendant under his second plea? The ground of the action is conversion of the property, and the plea of limitation commenced when the conversion took place. Darnall was guilty of a conversion in the act of taking possession of the property. If he was guilty then, he was the moment he set up a title to it in 1786. But [**26]  if his possession was lawfully acquired, his subsequent claim of the property was the conversion of which the plaintiff complains. He cited 6 Bac. Ab. tit. Trover, (B,) 679. Bristol vs. Burt, 7 Johns. Rep. 254. There can be no doubt but that Darnall was guilty of a conversion in his life-time. The defendant took possession in 1803, and has always since claimed the negroes as his own property. And as more than three years have elapsed from that time, the plaintiff cannot recover. The replication to the defendant's plea of limitation, is general, saying that three years had not elapsed when the suit was brought. The plea has been supported by the defendant, and it is a complete bar to the plaintiff's action. But it will be said that there was no administration on the estate, and that until there was a demand made by the administrator there could be no limitation. Where the party is rightfully in possession of property, then a den and and refusal are necessary to constitute a conversion; but if the possession is unlawful, no demand is necessary; and a demand and refusal, in such a case, would not avail the plaintiff. From the time of taking illegal possession, limitations commenced, because [**27]  the conversion arose on the unlawful possession. But it may be said that this case is an exception from the general law on this subject, because here there was no administration. There are, it is true, exceptions to the plea of limitations, as in the cases of infancy, non-residents, &c. if the party takes advantage of the exception, but not otherwise. This case by the replication is not put upon the ground as to the time when the letters of administration were granted, so as to take the case out of the statute. The plaintiff should have replied specially what he intended to rely on. In the cases of infancy, &c. the replications are special where the exceptions in the statute are relied upon. Here there has been an abandonment of the property for more than 30 years; and after every person, who could have any knowledge of the facts, have ceased to exist, this claim has been brought forward, and has been made by a volunteer. If there is any case to which limitations should apply, it ought to apply to this. There was always a person answerable to the creditors of the deceased. For taking it upon the ground that there was no rightful administration, Darnall, by taking possession of the [**28]  property, made himself executor de son tort. He could have been compelled to settle up the estate. He was an executor for every purpose except that of bringing actions. 4 Bac. Ab. tit. Limitation of Actions, (E 5,) 479. Curry vs. Stephenson, 2 Salk. 421. S. C. Carth. 335; and Webster vs Webster, 10 Ves. 93.

On the second bill of exceptions. It is not stated for what purpose the account contained in this exception was given in evidence. It could have been but for the illegal purpose of inflaming the damages to be recovered.

On the third bill of exceptions. There was strong presumption that Darnall acquired a good title to the negroes. His uniform and undisturbed possession, and that of the defendant for near 40 years, and no satisfactory account given why the claim now set up was not before made, are conclusive circumstances to show a good title. The defendant was not bound to show how he came by the property. If his long possession, and the possession of Darnall under whom he claims, are not sufficient to protect him in his possession, there is no security for property; and if he is not entitled to the presumption of having a good title, no person can be secure in his property,  [**29]  no matter how long he may have had possession of it. Length of possession strengthens a man's title to property; and here has been a sufficient foundation laid whereon to presume a title. Acts of parliament, grants, deeds, &c. are always presumed for the purpose of quieting possession; and if so, why not in this case presume that a valid transfer of the property had been made to Darnall. Evidence of the title to property of this description need not be put upon record, and there is consequently a stronger ground to let in presumption here than where a party is bound to place his title on record. 1 Fonbl. 319, (and note)

On the fourth bill of exceptions. As the descendants of Dinah were born after Darnall had taken possession, and some of them a short time before the suit was brought, and Darnall, and the defendant, had been at considerable expense in raising them, the value of the negroes to be recovered should be their value at the time of the conversion. The party cannot postpone his suit until the property becomes valuable, and recover the value at any time after the conversion. An action of trover is for damages for the tort by the conversion committed of the thing. Suppose [**30]  Dinah had died in the possession of Darnall, suit might be brought for her value when she died. Taking the conversion in 1786, then the damages are to be for the value of the negroes at that time. United Insurance Company vs. Robinson, 2 Caine's Rep. 280.

On the fifth bill of exceptions. The letters of administration granted to the plaintiff in 1812, were offered in evidence under the issue joined on the plea of limitations, although they were not relied on in the replication to that plea. There was no summons for, or notice given to, the representatives of J Fishwick, to appear and take out letters; but they were obtained by the plaintiff without notice or summons, from one of the clerks in the office in vacation. There was no evidence offered that the orphans court approved of the letters being so granted, except a general order authorising the register to grant letters in all cases when applied for. To defeat the plea of limitations these letters were produced, to show a recent demand after they had been granted, and that limitations did not begin to run until 1812. This was not necessary, unless it be the law that a demand and refusal constitute a conversion. But the letters [**31]  were granted to the plaintiff without any authority. He did not stand in the character of a creditor, or as a representative of the deceased, so as to entitle him to demand the letters. He obtains them without the sanction of the court or even of the register.

On the sixth bill of exceptions. The jury might recoupe in damages; that is deduct the amount of what Darnall and the defendant had paid on account of Miss Fishwick, and for their claim against her estate. Bull. N. P. 48. Toller, 365. 3 Bac Ab. tit. Executors, &c. 25. Witehall vs. Squire, Carth. 104.

Jones, (District Attorney of Columbia,) on the same side. As to the act of limitations, relied on in the first bill of exceptions, which he stated was an original question, he said he intended to rely, in addition to the authorities cited, upon Went. Off. Ex'r. 49, in the original, and 125 in the supplement, where the doctrine of relation is treated of. As to the presumption relied on in the third bill of exceptions, he cited 1 Phill. Evid. 119, and the authorities referred to. On the fourth bill of exceptions, Leach vs. Slater, 1 Harr. & M'Hen. 513. On the fifth bill of exceptions he should contend that the letters of [**32]  administration were ipso facto void. He cited Griffith vs. Frazier, 8 Cranch, 9. On the sixth bill of exceptions, he cited 2 Blk. Com. (Tucker's edit.) 507, 508, (ch. 32.) Anon. 12 Mod. 441; and Parker vs. Kett, Ib. 471, 1 Vent. 349.

F. S. Key, for Hepburn the Appellee. On the first bill of exceptions. Conversion is the gist of the action of trover; and one of the questions in this case is, when did the conversion here happen? The plaintiff proved a demand and refusal in 1812. But it is said that some act of Darnall, many years before administration was granted to the plaintiff, amounted to a conversion. The acts of Durnall did not amount to a conversion. They would not have amounted to a conversion, if there had been at the time an administration on the estate. There is no evidence of the change of the intention of Darnall as to the manner in which he held the property. He declared at one time, in 1782, how he held it, and he never stated himself at any time to hold it absolutely as his own. He held it to satisfy his claim, and professed himself ready to deliver it up to the rightful administrator, and until, therefore, there was a demand by such administrator, there could be [**33]  no conversion. Conversion is a tort, and to commit a tort there must be some person upon whom to commit it. Here there was no person to be affected by the tort, there being no administration. Until there was an administrator there was no person to sue for the property. The plea of the act of limitation cannot bar where there is no person against whom limitations can commence. It could not run against the representatives, because they could not sue. 4 Bac. Ab. tit. Limitation of Actions, (E 5,) 479. 2 Esp. Dig. 210, (595,) cites Wortley vs. Sandwick, Farresley, 99. In Webster vs. Webster, 10 Ves. 93, the disability lay on the part of the defendant, and the plaintiff there had a right to sue; and because the defendant might have been sued as executor de son tort, the Lord Chancellor decided that limitations was a bar. That case, therefore, does not support the position for which it was cited on the other side.

On the second bill of exceptions. As Darnall had set up certain claims against the estate of Miss Fishwick, the account offered in evidence in this exception was offered to show that he was a debtor to the estate of her father, to which estate she was entitled, and therefore [**34]  that those claims ought not to be deducted; and not for the purpose for which it is said to have been offered of inflaming the damages.

On the third bill of exceptions. This is the only exception upon which there can be the least doubt. The prayer is some what vaguely expressed If it is that Darnall took upon himself the executorship, he should have gone on and completed the administration. He could not sell the property to himself; and even if he did administer, he can make out no claim as administrator. He could not retain the property and charge the value to himself. It cannot be presumed, therefore, that he fully administered the estate. There is nothing to entitle the defendant to the presumption that there was a transfer of the property to Darnall by the representatives of the deceased, or any settlement of the estate by him, with their assent. There are no circumstances proved to justify such a presumption, but length of time and uninterrupted possession. These it is admitted are prima facie evidence, unless repelled by proof. This proof has been given by the plaintiff, and he therefore comes within the opinion delivered by this court on the former appeal. There were two [**35]  ways of rebutting the presumption, one was to account for the delay in not prosecuting the claim, and the other to prove facts inconsistent with the presumption. Both of these have been done by the plaintiff. The delay was unavoidable, and proceeded from good causes, and is sufficiently explained in evidence. There were femes covert, minors, and the parties residing at a distance. &c. among the persons entitled to the estate. These are sufficient excuses. Eldridge vs. Knott, 1 Cowp. 214. No improper design can be imputed to the representatives for the delay which took place. There can be no pretence for the presumption. The facts are inconsistent with it. No such agreement or assent can be inferred. If there had been an agreement, it would have been in writing, and would have been preserved in the manner the old letters and account produced were preserved. Muir's letters in 1782 and 1786, show that there was no such agreement. Mr. Hepburn's conversations, just before his death--the evidence of Doctor Beanes, showing Darnall had informed the defendant of his claim against the estate, and how he was to defend himself, are strong circumstances and proof that there never had been such [**36]  an agreement. The account exhibited from Darnall's books makes no mention of an administration, or any thing about the agreement. The whole evidence goes to prove, that the defendant never thought of any such agreement, but relied solely on limitations. Admitting the evidence would justify the presumption, how does the case stand as to the fair administration of the estate? The father of Miss Fishwick bequeathed her a legacy of £  200, to be paid on her arrival to the age of 21 years. This sum was never paid by Darnall, who married her mother, the executrix of her father. He had then funds in his hands to pay doctor's bills, &c. without holding Dinah and her children.

On the fourth bill of exceptions. The general principle is that the measure of damages is the value of the property at the time of the demand. But it is said that there were expenses in supporting the negroes. There was no evidence given of any such expenses. The services of the negroes greatly exceeded the expenses of their support. The whole subject was before the jury, and they had a right to deduct what they thought proper.

On the fifth bill of exceptions. The letters of administration offered in evidence [**37]  were under the seal of the court, and cannot be questioned. No parol evidence can be gone into to show how they were obtained. At all events they could not be questioned, unless by way of a plea. The declaration expressly states the granting the letters, and the demand and refusal. The acts of the deputy register are to be considered as the acts of the register, and he had authority from the court to grant the letters.

On the sixth bill of exceptions. The claim on account of debts paid, could not be set off in this action of tort. This is not like an action against an executor de son tort; there is no sort of connexion between the two cases. If the defendant was sued as executor de son tort, he might then claim to be allowed for any money he had paid; but he could not claim for money paid by Darnall. An executor de son tort for lawful acts, may claim a discount; but for unlawful acts there can be no allowance. He shall not retain the property, and claim to recoupe. Bull. N. P. 48. Toller, 365. 2 Esp. Dig. 211. Therefore, taking this as a suit against Darnall, as executor de son tort, he could not recoupe.

Martin, (Attorney-General,) on the same side. On the first bill of [**38]  exceptions. For a conversion committed of the property by the defendant, he attempts to excuse himself by certain acts of Darnall; and because Darnall had been guilty of a conversion 30 years before the conversion by the defendant, the defendant claims to be excused his own conversion. Suppose this could avail the defendant if he had pleaded it, yet as he has not pleaded it he cannot set it up as a defence. No person can set up an antecedent conversion to excuse or get rid of a subsequent one. In truth there can be but one real conversion--such a one as terminates the existence of the property, as if a man kills and eats an ox, this is a complete and real conversion. There are other conversions, if the property is not destroyed, to be conversions only at such time as the plaintiff may elect to make them so. So long as the property remains in existence, when the owner chooses to demand it, and there is a refusal, then is there a conversion. No right is changed by the conversion; nor does length of possession change or alter the right. It may bar the action, but the right still remains. The mere claiming of goods is no conversion. The party must dispose of them before he can take advantage [**39]  of the time when the conversion commenced. 6 Bac. Ab. tit. Trover, (B) 679, 680. For a tortious taking without conversion, trover will not lie. If the party intends to bring an action of trover, he must make a demand. There must be an actual conversion, after a tortious taking. A verdict in trover and satisfaction amounts to a transfer of the property. The property is considered in law to be in the person injured, for the purpose of punishing the wrong-doer for the trespass, &c. Conversion is the gist of action, and for which damages are recovered. There may be a subsequent conversion, for which the party may recover--as "if a person takes my horse to ride and leaves him at an inn, that is a conversion;" but suppose no action is brought, yet the property in the horse remains, and any subsequent injury may be elected to be sued for. But if the plaintiff elects for what injury he claims damages, his action must be brought within three years after such injury. If the property remains in existence, trover will lie for any injury the party may elect to sue for; but if the existence of the property is terminated, then the conversion is at an end, and the action must be within three years [**40]  thereafter. Here, no matter how many injuries were done to the negroes in question by Darnall, yet the property remained in J. Fishwick, or her rightful administrator, and he may bring an action for the injury done by the defendant. Unless there is an action for a total conversion, the property in specie remains in the original owner, and an action may be brought for any after injury. There may be acts done which the party claiming may elect to consider as a conversion. As "if J. S, who lawfully distrained a beast, work it, this is a conversion," and trover will lie; but the working the beast does not destroy the property in it. If he, three years afterwards, sell or kill the beast, the former conversion will not prevent an action being brought then. While the property remains in possession of the person who does the injury, he is liable for any particular injury which the owner may elect to sue for. It is not necessary that the property should continue to remain in the possession of the person injuring it, between the times of committing the two or more injuries. It is not the tortious taking for which the action lies--but the conversion. If a person finds a garment, and wears it,  [**41]  this is a conversion. His duty was to keep it, and not use it, until after a fair presumption, that there was no owner for it. But if there is no demand until three years after the wearing it, yet an action may be brought after a demand and refusal. There can be no conversion unless it be one in reality by a total destruction of the property, wherein the party is not bound to elect. The cause of action accrues on the conversion; and when the party is called upon to restore the property, and refuses, the law presumes that he applied the property to his own use, and it is prima facie sufficient evidence of a conversion. Ball. on Lim. 96. That there may be subsequent conversions, is established in Swayn vs. Stevens, Cro. Car. 245. Ball. on Lim. 97. The action does not depend upon the length of time the property is out of the possession of the party injured; for though he is out of possession, it is still his property. If the property remains in the hands of the person who committed the first conversion, he may be proceeded against for the second conversion. If the property gets into the possession of another person, after an injury had been committed on it, a recovery may be had against [**42]  the person who committed the last injury. There is no principle of justice or equity which can militate against this construction. The word conversion has led to the mistake into which the appellant's counsel have fallen. When it is rightly considered what is a conversion, there can be no doubt upon the subject, because there may be 100 injuries of the kind which the law considers as amounting to a conversion. 2 Esp. Dig. 595. Wortley vs. Sandwich, 7 Mod. 99. Here it is contended that there was no act, antecedent to the demand and refusal in this action, which amounted to a conversion, and for which an action could be brought, had there been any person who could have brought the action. Before the letters of administration were granted to the plaintiff, there was no person who could claim, and the statute of limitations begins to operate only from the time a right to demand the property vests in some one. 4 Bac. Ab. tit. Limitation of Actions, (E 5,) 479, (note a.) Curry vs. Stephenson, Carth. 335. Joliffe vs. Pitt, 2 Vern. 695. Here the first conversion was on the demand by the plaintiff, and refusal by the defendant, for until then there was no person who could demand and claim for [**43]  a conversion. Whether Darnall was liable to be sued as executor de son tort or not, has nothing to do with this case. He could only have been sued by the creditors, and the plaintiff does not claim as a creditor. Darnall was as much bound to take out letters of administration as any other person. He claimed as one of the representatives. All the rest of the representatives had sufficient excuses for not administering; but Darnall had none. The plaintiff now claims the property, that he may administer it, and do that which ought have been done by Darnall. Nothing had taken place to prevent this, as the property is in existence, and unchanged in any manner. The counsel for the appellant has cited Went. Off. Ex'r. 49, (125,) for the purpose of showing that the letters granted to the plaintiff must relate to the time of the death of the intestate, so as to let in the plea of limitation in order to defeat the action. Relation is a fiction of law, introduced for the sake of doing justice; but if introduced in the manner contended for in this case, it would work injustice. Relation of the letters of administration to the time of the death of the intestate, is allowed for the purpose of preventing [**44]  limitations from barring; and it is allowed for the purpose of punishing all intermediate trespasses committed on the property of the deceased, and to enable the administrator to take possession of the property for the purposes of administration. Letters testamentary have relation to the death of the testator, so as to render void all intermediate acts by the administrator.

On the third bill of exceptions. It is supposed that the prayer in this exception was, that although no letters testamentary appeared upon record to have been granted to Darnall, yet it might be presumed that they had been granted to him, and that he had fully administered the estate. As there was no will made by Miss Fishwick, there could be no letters testamentary granted on her estate, and there is no evidence to justify the presumption that any letters had been granted. There was none in 1782, and there is nothing showing that any had been granted since. But more is here asked to be presumed than could be asked if there was an administration appearing upon record. How can it be presumed that Darnall fully administered, when it is in evidence he had property of the deceased in his possession. He could not [**45]  by paying the debts, keep the property. In 1786 Muir denies having ever received any thing; and there was no proof of payment to any of the other representatives. The evidence not only rebuts the presumption that Darnall, with the assent of the representatives, administered on the estate, but it proves satisfactorily that there was no such administration.

On the fifth bill of exceptions. The letters of administration granted to the plaintiff is conclusive evidence that they were granted in due form of law by the orphans court, and no parol evidence was admissible to show that they had been improperly granted. There was nothing in the manner of granting them by which they could be revoked by the orphans court; and until they are revoked, they are evidence that the plaintiff is the administrator. The decision in Griffith vs. Frazier, 8 Cranch, 9, was on the ground that there was no power in the persons to grant the letters, as former letters had been granted, and not whether they were improperly granted; and the court decided that when letters were once granted, by a court having competent jurisdiction, and were unrevoked, no new letters could be granted. A distinction is there [**46]  taken between an erroneous act of a tribunal having competent jurisdiction, and the act of a tribunal having no authority. The case cited sanctions rather than operates against the case before this court.

On the sixth bill of exceptions. The object of the prayer in this exception was, that any debts which Darnall had paid for Miss Fishwick might be deducted from the damages to be assessed in this action. Darnall might have claimed such a deduction if the action had been brought against him, and he had paid the debts with his own money, and there was no other property of the intestate, except that in his hands. He may have sold property of the deceased to the amount paid by him. There is strong presumption that the debts were not paid with his own money. It has been shown that a legacy of £  200 sterling was left to her by her father, besides a large balance due his estate from Darnall who married the executrix, to which she was entitled. And from Muir's letter in 1775 the presumption is, that he paid the debts, for he said he should pay the money due Doctor Murray. Where an allowance is to be made to an executor de son tort, it is, where the property of the deceased is sold by [**47]  him, and he accounts for the amount by showing it had been paid away for debts due from the deceased. And this too is only done when he is called on by the creditors of the deceased, and not where he is called on by a rightful administrator. Toller, 365. Where the executor de son tort retains the property, no such allowance is made. Bull. N. P. 47, 48. 1 Went. Off. Ex'r. 181, 182. 1 Ventris, 349. The cases of, Anon. 12 Mod. 441, and Parker vs. Kett, Ib. 471, do not impugn this principle. But here is no action against an executor de son tort--this is an action against a person who never acknowledged he held the property of the intestate, nor had paid debts which he wished to be recouped from the damages. But even if such a deduction could have been made in an action against Darnall, the defendant upon no principle of law can claim to recoupe from the damages a debt paid by Darnall, when he is sued only in his own right, and not as the executor or administrator of Darnall.

Jones, (District Attorney of Columbia,) in reply. The bill of exceptions, which stands the fifth in order in the record, will be first considered; that is, the one which relates to the title of the appellee to [**48]  appear in this court. If the appellee has right, it has been by the oversight of the persons interested; and if that right should be thought a valid one, it gives to him a title which he had not before. It appears that these letters of administration were obtained by the appellee without any previous notice having been given to the persons interested, and without any citation having issued. In limine then, their obtention was a clear and manifest transgression of the testamentary system, from which the powers and authority of the orphans court are derived. Such an open and obvious violation of their powers, that this court are at liberty, nay, they are bound to say, that the orphans court, in the granting of these letters, had no jurisdiction, and therefore that the letters themselves are, to all intents and purposes, void. The jurisdiction of the orphans court is a strictly limited one. The powers of the register are purely ministerial. All the the powers of the orphans court depend on statutory provisions. It is the statute which points out who shall be entitled to administration on intestate's estates. That it shall be first given to the next of kin in a prescribed order, and on [**49]  their refusal then to the creditors. If neither next of kin nor creditors apply, letters ad colligendum are issued to preserve the estate. It is not necessary to travel through all the powers of the orphans court. It is sufficient for our purpose that they have only jurisdiction in the particular cases given by the statute. The orphans court differs toto caelo from the tribunal we now address. Their powers are tied down by the statute. If they grant administration to any one whom the statute does not entitle to it, they exceed their jurisdiction--they transgress their powers--they act without authority. It is admitted that the judgment of a court of competent jurisdiction is, as to all matters decided by them, final and conclusive; that it can never afterwards be questioned by any other tribunal. But there is a vast and material difference between bringing under review the judgment of a court, in cases where they have jurisdiction, and that of calling in question the acts of a tribunal which have been done through fraud or by a clear transgression of its jurisdiction. It can scarcely be necessary to refer the court, for this purpose, to the case of The Duchess of Kingston before the [**50]  House of Peers, as it must be familiar to them. In the decision of that case, the correctness of a decision of an Ecclesiastical court was involved, and it was determined, that as such decision had been obtained per fraudem, it was ipso facto void, and the decree of that court was therefore nullified. Here we have an additional reason for vacating the letters of administration granted to the appellee; for besides their having been obtained per fraudem, they were illegally obtained; that is, they were acquired coram non judice. The court have been referred to the case of Griffith vs. Frazier, 8 Cranch, 9, not for the purpose of shewing that in all cases the judgments of other tribunals can be brought in issue, but only to shew that where such judgments are absolutely void, it is not necessary to go into that court for the purpose of vacating them, but that that object may be effected in a court of appellate jurisdiction. That case came before the supreme court upon a writ of error to the circuit court for the district of South Carolina. The court of probate of South Carolina, a court in many respects similar to the orphans courts of this state, have the power of granting letters durante [**51]  absentia. A power, however, denied them under peculiar circumstances. To come at the fact whether these peculiar circumstances existed, the appellate court thought itself authorised to make the inquiry, so far as it could be made in the record. And when from the record it appeared that such circumstances did not exist, and of course that the court of probate had granted the letters durante absentia, without having had jurisdiction to do so, the appellate court decided that such letters were ipso facto void, and gave judgment accordingly, though the legality of the letters was only collaterally brought in issue. To apply that case to the present--It is true that the letters of administration here are prima facie evidence that the appellee was entitled to them; but when we examine the record it is obvious that he was not entitled, and that the facts in the case are such as did not give the orphans court the power of granting them; because the record shews that there were others who were entitled, and that the requisites of the testamentary system, under which, and under which alone, the orphans court can act, have not been complied with. This court are here called on to receive and foster [**52]  a monster in legal proceeding; for they are not only required to sanction the acts of a court, but of the register of a court--nay, not the acts of the register, but of the register's deputy. The question here indeed seems to be not so properly whether the orphans court had jurisdiction to issue the letters, because there is no evidence that the court did grant them, but on the contrary it is evident that the court did not grant them, as they were not in session when they were granted, but whether the orphans court have the authority to transfer their powers and duties to their register. Are we to be prevented from calling these letters in question because they have the seal of office attached to them? Has a seal such magic in it that it wraps every thing it touches in mystery? The orphans could act either judicially or ministerially. If they act ministerially it is evident that their proceedings may be inquired into, and that they are not conclusive. If they act judicially it is also evident that though we may not be authorised to inquire, (which is not admitted,) into the lawfulness of their conduct, yet it by no means follows that we may not examine into the fact whether they have [**53]  acted at all or not--whether the act of their register is to be considered as their own. Let the rolls of this court be applied to for an illustration, and we ask, if any person by accident or fraud should, during the recess of the court, obtain the seal to a professed judgment of this court, when no such judgment had ever been rendered, the party affected thereby would be bound by it until the judgment had been vacated by writ of error? Or, whether when the court, by whom it professed to have been rendered, denied it, and the party was able to prove undeniably that such court was not in session at the time when the judgment appeared to have been passed, it could not be avoided when collaterally brought in issue? And that where a person claimed lands purchased under an execution on such judgment, in the trial of an action of ejectment for such lands, the opposite party would not be able, by proving the judgment to have been obtained by mistake or fraud, to nullify it. It would indeed be a monstrous absurdity, that a writ of error should lie on a judgment which never had been rendered. The most reasonable way, surely, is to treat such acts as ipso facto void. But an objection to these [**54]  letters being declared void, because they were not granted by the court, but by the register, is that the court have adopted the practise of so delegating their authority. If any such practice existed, it is founded in absurdity. But on inquiry none such is found. However, if its existence was true, this court have to decide on it as if it had been adopted at the issuing of these letters for the first time, because it is now for the first time brought under their cognizance. Precedents have no force except in the tribunal by whom they have been established. As the legality of this practice of the orphans court was never previously inquired into by this court, it is, so far as regards precedent, of no more weight, than if it had in point of fact commenced yesterday. Where a man dies intestate are his infant children to be put under a guardianship unknown to the law? It is the judges of the orphans court, and they alone, to whom the law is willing to confide this important and delicate trust--men chosen for their high standing in private life, and their knowledge of the laws of the land. Is it to be permitted that the register, or the register's deputy, may say to them, the forms of [**55]  proceeding are yours, but I will be your Viceroy? No such anomaly can exist--none such can be sanctioned by this court. The case of Griffith vs. Frazier is conclusive on this point. There the general jurisdiction of the court of probate was acknowledged, but its exercise in that particular case was declared to be beyond their jurisdiction, and therefore ipso facto void. Here the letters of administration would be void if they had been the act of the orphans court, because by the act of assembly under which only the court have power, the appellee was not entitled to them. But if he had been entitled, they would be void, not having been granted by the court, but by the register's deputy. The act of congress points out a method, by which only the proceedings in state courts can be certified, so as to be evidence in another state; that is, that the chief judge of the court, in which the proceedings take place, shall certify them. The effect, therefore, of giving validity to these letters would be, that it would make them binding in the state, but not out of it; since the chief judge of the orphans court, in which they appear to have been granted, could not give them efficacy in any other [**56]  state by certifying them as the act of congress directs, the court not being in session when they were granted.

A point which arises under the first bill of exceptions will now be examined--Whether, admitting the letters of administration to have been legally obtained, the appellee is entitled to recover? Here a question of first importance presents itself, which is, whether by statute or common law there is any such thing as acquiring a right to property by length of possession, because if forty years possession will not give a title, no lapse of time can vest one. It will be shown in the first place, that the appellant's possession of the property now in dispute is protected by the act of limitations; and secondly, if limitations do not apply, that the doctrine of presumption affords him an ample defence--a doctrine which has been established for the purpose of supplying the foresight of the legislature. As to the importance of these questions none can doubt. The dispute here is as to the right of property to a negro woman, and her issue, who have been in the appellant's possession--undisturbed possession for forty years. If a possession for this length of time will not give [**57]  a title, on the same principle one acquired in the days of Lord Baltimore will not give one. If any person should choose to trace back the title to personal property so far, and finds it to have belonged to an individual of that day, and after searching through the musty records of your orphans courts, discovers either that no administration was ever taken out on his estate, or what (according to the reasoning now relied on,) amounts to the same thing, that there remains no evidence of such an administration, he has only to take out letters himself, and he instantly becomes entitled to all the said property, together with its increase from that day to this, limitations and presumption to the contrary notwithstanding. If, in a word, the claim of the appellee in this case can be supported, no length of possession can secure a title--nothing can prevent claims like the present from springing up but the hand of time, which buries both property and owner in one common ruin. If the property has been originally wrongfully possessed, and the letters of administration are construed for this purpose as relating back, the first taker not only is made liable, but his representatives in infinitum;  [**58]  because if the wrongdoer has no right, and limitations and presumption are displaced, he can give no right to his representatives. But the true and correct principle is, that an administrator is the owner by relation for every purpose, and to every effect. This principle, it will be shown, is established by the true construction of the act of limitations, and by the authority of adjudged cases.

It may be stated generally, on the first branch of this last question, that no court has ever decided since the statute of James, or the act of limitations of this state, that limitations do not apply to a case like the present. Let us examine this question on principle. How does an administrator, long after the death of the intestate, claim? Surely by relation back, not for one purpose only, but for every purpose. As to contracts and torts in the life time of the intestate, he represents only the rights which the intestate himself had, and he takes them precisely as he would have done had he administered the day after the death of the intestate. We have only to shew, that the cause of action accrued in the life-time of the intestate, and limitations run. The books say so una voce. This,  [**59]  however, it is said is a different case, and presents a new question, because here the cause of action did not accrue in the life-time of the intestate, but after her decease. And so in every other case of tort or contract arising after the death of an intestate, limitations, it is contended, only commences from the date of the letters of administration. If this case arises from a tort done after the death of the intestate, it sounds in damages, and it ought to have been laid on a tort done the administrator. The foundation of this case is, that by fiction and intendment, and the doctrine of relation, though the tort here complained of is of fifty years standing, yet the appellee is entitled to sue for it, as if it had been of yesterday; or in other words, that a right to sue at all only acquired yesterday, shall be construed back for fifty years. The doctrine of relation should never be called in but to the aid of justice--to give but not to divest rights. The court are called on to make the appellee the administrator of 1775, for some purposes, but for others to keep him to the date of his letters. This is surely not the conduct of even handed justice. The plea of limitations is [**60]  not a bad plea. Lord Mansfield has declared it to be essential to individual justice and protection. Where, let it be asked, is the injustice of saying that this right of the appellee existed forty years ago? Can this court say to the appellee, we will give you all the privileges which the doctrine of relation can give you, but we will take care that you shall be exempted from its disadvantages? Will you take away from the appellant this aegis against vexation--the aegis of the act of limitations? This would be to make stern justice deviate from the dictates of duty. The property now in litigation was, at the death of Miss Fishwick, of trivial value. It has swelled into importance by the fostering hand of time. Who, let it be asked, is an administrator or executor? Do they acquire any beneficial right of property in the estates of the deceased? Or are they not bare trustees? And is the beneficial claimant to skulk behind this fiction of law? If there be creditors, or others, beneficially interested, are they not bound to assert their claims; and if they omit to do so, are they not as much guilty of laches as a legal claimant who omits to sue? The legislature, so far as regarded the [**61]  act of limitations, intended to place the legal and the equitable claimant on the same ground. This, the reason and the spirit of the law alike demanded. What is the difference between a legal and an equitable claimant? Is there any in fact, except as relates to their means of remedy? And are not the means open to the latter as effectual for the recovery of his claim as those which are enjoyed by the former? Most unquestionably they are. Moreover, when we invoke in this case the aid of the statute of limitations, we use it in effect not against the administrator, but against the obsolete claimants. It is to them only it will injuriously apply, and they merit it by having been guilty of laches. From analogy too, and on principles of policy and justice, this court must, when they give the appellee, by the doctrine of relation, the capability of suing, also subject him, by the same doctrine, to the statute of limitations. It will be considered first on authority. It cannot be doubted, because such are the express words of the act of assembly, that a cause of action like the present, may be effectually barred by the act of limitations, where three years have elapsed since it originated,  [**62]  and before the institution of a suit. The distinctions which have been adopted in the construction of this statute, are, if the court will permit the digression, highy singular. For instance, it is said in the books, that the effect given by this statute to length of possession is not to transfer a right, but only to destroy a remedy. Now it would seem, that where you take away a man's remedy to the recovery of a right, you necessarily divest him of the right itself. For it must be obvious, that in every case where the law gives to the possessor of property the power of defending his possession, whenever he is able to show a certain length of possession, by that circumstance alone, it of course changes the estate he previously had in such property, from an uncertain and precarious one, into one of an absolute and indefeasible nature, and consequently in effect puts to death the right of all other persons to the same. By way of illustration, to what it is feared has been too obscurely stated, we know that to a writ of right sixty years is a bar, and to an action of ejectment twenty years possession is a bar. It is then a maxim in law that every right has its peculiar and fit remedy.  [**63]  In the instances referred to, however, neither the plaintiff in the one, nor the demandant in the other, have any relief for their several claims--the claims themselves, therefore, on the foundation of that maxim, may be said to have expired; and as these claims existed, and might have been recovered at any time before the lapse of the sixty or twenty years, during which period consequently the tenant or defendant held their respective estates by an uncertain tenure, at the end of such period that uncertain tenure is transformed into an absolute estate. When the true, or rather the original owner's remedy is taken away, his right is destroyed. To say that the right exists, although the remedy is lost, is contrary to every principle of common sense. The poet tells us "that you take away my life when you take away that by which I live." And with more truth it may be said that you take from me my right when you take from me my remedy. In order, however, to show that here we cannot avail ourselves of the plea of limitations, we have been told that no cause of action existed previous to the taking out the letters of administration, inasmuch as no species of abuse of property, except its [**64]  total destruction, can amount to an act of conversion, unless the true owner thinks fit so to consider it; or, in other words, that nothing but a demand and refusal can make a conversion. It is admitted that a refusal is in most cases evidence of conversion, but it is denied that it is more than evidence, or that it is the only evidence. Where one is in the possession of property by the consent of the true owner, it is agreed that there can be no conversion till the true owner demands the restoration of the property, and the possessor refuses to make it. 2 Esp. Dig. 203. So where the heir of a person, who had held such a possession, continues to hold, he can be guilty of no conversion until demand and refusal, because the possession was with the consent of the owner. 2 Esp. Dig. 210. The court, however, has been referred, by the counsel for the appellee, to Ball. on Lim. 97, the case of a ship, for the purpose of showing, that although an act of conversion be once consummated, if there be a new act of conversion, on such new conversion an action may be brought; and although limitations would be a bar to an action for the first, it will not bar one for the last conversion, if within [**65]  three years. This court have said, and thereby furnished a complete answer to this notion of the counsel for the appellee, that although the action of trover is not by name included within the act of limitations of this state, it is nevertheless embraced by its general provision for all actions on the case; because it is apparent that if this doctrine of election, if it may be allowed to be so baptised, is sanctioned, that limitations can never be taken advantage of as a relief against an action of trover. It would be to leave it to the election of the plaintiff in all such cases, whether he would be barred by such a defence or not. For notwithstanding he has made a dozen demands of the defendant for the property in dispute, and has met with as many refusals, he has only to make a demand at any time within three years before he institutes his action, and he will thereby have provided himself, if he again meets with a refusal, with a satisfactory answer to the plea of limitations. The act of limitations tells us that no action of trover can be maintained after three years have elapsed from the time the cause of action arose. The court would, by the adoption of this asserted doctrine [**66]  of election, make the act of assembly "speak the word of promise to the ear, and break it to the hope." The fallacy of the reasoning by which such a principle is attempted to be maintained, consists in mistaking what amounts to a conversion. Was it ever before contended that an unequivocal act of conversion ever left the true owner, except as it regarded his remedy, at liberty so to consider it or not? An election of remedies is intelligible, but an election of conversions is, with all respect to the opposite counsel, absurd and preposterous. No authority whatever can be produced which even looks towards the establishment of such a principle, save only the very respectable authority of the attorney general, by whom it is now asserted. An authority, however, which I cannot avoid thinking we are more indebted for to professional ardour than to sincere conviction. As to the case of the ship, before noticed, taken pro re nata, it may be right, or it may be wrong. As an authority in point, whatever be the respect due to it, what does it amount to? Only that if a person commits an act of conversion on property, and afterwards parts with it, and comes a second time into the possession, and [**67]  again converts it, that he cannot avail himself of limitations if such second conversion be within the limited time. It goes on the assumption, that there can be no second act of conversion where the party continues in the possession of the property. And the decision rests on the fact of the property not having remained in the possession of the defendant from the time of the first conversion to that for which the action was brought. The cases in 6 Bac. Ab. 679, 680, as to what amounts to a conversion, will be now examined. These cases depend, it is apprehended, on the facts, of whether or not the first taking of the property is lawful; and if lawful, whether the right owner puts an end to it by making a demand of the property, or the taker puts an end to it by using it for a distinct purpose from the one for which he received it. For instance, if A lends to B a horse, the first taking here is a lawful one, and A could not sustain an action of trover against B, if nothing else ensued after the original taking; but as soon as he demands of B a return of the horse, and B refuses to make it, eo instanti does A become entitled to an action of trover. In such a case demand and refusal would [**68]  be the only evidence of conversion, because no conversion could possibly have taken place, (supposing B to have used the horse as he engaged to do when he borrowed him,) until such demand and refusal. But if B borrows a horse of A to ride ten miles only, and instead of doing so he travels a hundred miles, this misuse is of itself a conversion, and A could immediately bring his action of trover without a demand and refusal. In this case the first taking was lawful, and became tortious by the malconduct of the defendant himself. The remaining way is, whether A takes a horse from B. without his knowledge, there the first taking is unlawful, and A may either consider it as a trespass or as a conversion; and if he considers it as a conversion, and institutes his action of trover, he may sustain it by proving the illegality of the first taking, without giving in evidence a demand and refusal. The conversion in such a case, therefore, originates with the first unjust taking of the property, and it is then the cause of action arises; and of course it is from that time that limitations run. In the next preceding case in the book referred to, the conversion, and therefore the cause of action [**69]  and limitations, are to be traced back to the subsequent abuse of the property by the first taker, which being established also supports the action of trover without showing any demand and refusal. In the first supposed case, however, the conversion only arises after demand and refusal, as the first taking was legal, and the subsequent possession not made illegal by the misconduct of the borrower. It is at the time of such demand and refusal that the cause of action originates, and it is at that time that limitations attach. In all those cases the borrower makes himself an adversary holder the very moment he makes, what in law is called a conversion of the property. It will now be shown that this property was in one of the ways mentioned, converted either by the appellant, or by Darnall, the person under whom the appellant claims, more than three years preceding the institution of this suit. And as to this fact it appears almost impossible for any mind to entertain the semblance of a doubt; that is, for any mind free from the bias of professional zeal, which frequently leads the best and clearest understandings to the adoption of conclusions which, under other circumstances, they would [**70]  look upon as the mere "coinage of the brain." This zeal having led our learned opponents to controvert the fact which we have ventured to pronounce so perfectly plain, the great respect entertained for any opinion flowing from persons so much esteemed, must be an apology to the court for stopping a moment to make this fact, if it be possible, still more manifest. It has been said that Darnall, under whom the appellant claims, was only a fiduciary holder of this property. We admit that he might have been, if he had thought fit, such a holder, because as the friend of Miss Fishwick he had the right of collecting and preserving her effects at her decease; but does the proof show that he did so hold this property? But we will go farther, and admit that he did actually in the first instance so receive the property. And it by no means follows that he thereby obtained the right of using it for his own benefit, because the moment such an holder uses or makes profit of the property, that instant he becomes a wrongdoer, and from that period is to be dated the conversion, and consequently the limitations. What then is the proof as to the fact of the use of the property in dispute by Darnall,  [**71]  and of his applying it to his individual profit? Does it not appear by the testimony of Doctor Beanes and Mrs. West, that Darnall for twenty years before his death held and claimed Dinah, and her descendants, as his own? Was not such subsequent holding, therefore, a manifest act of conversion, even allowing that he originally received possession as a fiduciary holder? In the year 1786, twenty-six years prior to the issuing the letters of administration to the appellee, do we find Darnall professing to hold this property in trust only? There is not a scintilla of evidence to such a fact, so that for aught that appears to the court, not even his first taking of the property was fiduciary. Mr. Muir, in his letter of 1786, does not demand this negro woman as his own, but asks only for his share of Miss Fishwick's estate. In the year 1775 Muir thought it useless to administer on the estate, but in 1786 we find by his letter of that date, that he says unless something was shortly done he should be obliged to administer. There is a chasm in the proof from the year 1775 to 1786--as to the facts which intervened we are left entirely in the dark. We have it also in proof that Darnall always [**72]  informed the appellant that this negro woman, and her children, were his own; that the appellant took this property nine years before the bringing of the present action, and that he held it sui juris cannot be questioned. To make Darnall, therefore, a fiduciary holder of the property, and to show that he remained such until his death, will avail our learned friends but little, unless they can also shew that the appellant received and held the property on the same terms. But to make the appellant a constructive trustee would be not only presuming that which there is no ground to presume, but would be drawing a presumption palpably in the face of the fact. We have thus, as succinctly as we possibly could, attempted to answer the general reason which our friends say must prevent an action, situated like the present, from being barred by the statute of limitations; that is, because there was no person in esse capable of suing before the appellee administered on Miss Fishwick's estate. We will now proceed a step farther, and endeavour to satisfy this court, that not only is such an exception unwarranted by reason, but that there is no adjudged case which gives it sanction. To enable the [**73]  appellee to sue, he is by fiction of law carried back for forty years, and we humbly trust we have satisfied the court, that if he is entitled to the benefit of that fiction, he must be also subjected to all the disadvantages which may be found to attend it. We are told, however, that the reason why this case should be saved from the operation of the statute of limitations, is precisely the same on which all the exceptions, expressly provided for by that statute, will be found to depend. We hope, on the contrary, that the court will think with us, that the very object of the statute demands that its protecting hand should be extended to save a defendant from the grasp of equitable, as well as from that of a legal claimant; and that there is no reason to justify the establishment of a distinction between them. That after time has run with its relentless pace, unappalled by danger, unimpeded by circumstances, and has destroyed in its course, or may be fairly presumed to have destroyed, all evidences of the dealings and transactions between the parties, it would be unjust, unequitable, and against the spirit of the law, to suffer one of those parties, at any remote epoch, to recover a [**74]  claim against the other, because that claim chanced to be in its origin what is technically styled an equitable, instead of a legal one. Such an exception would obviously be for the benefit of cases of clear laches. Is there then any decided case to tie up the judgment of this court upon the subject? There is none, and this court are left to decide it, unshackled by the shadow of any such authority. The only case in which such a principle is to be found, is the one we have been referred to, of Curry vs. Stephenson, in 4 Bac. Ab. 479. The case is also reported in Salkeld 421, and in Carthew 335. The last of these reporters is justly entitled to the reputation he has acquired of accuracy, and it is by him that this case is most correctly stated. But neither in Bacon, Salkeld nor Carthew, is this principle stated to have been adopted by the court, for the case went off on a demurrer to the replication for the want of a proper conclusion. The principle, on which the appellee's counsel relies, is founded on the dictum of Lord Holt, and was not required to be decided by the case before him. Lord Holt refers, for the correctness of this dictum, to Stansford's case, cited in Saffin's case,  [**75]  Cro. Jac. 60, 61, and 5 Co. 123. No one can deny that Lord Holt was a good and estimable judge, but he was not authorised to declare the law ex carthedra. What then was the nature of these cases as reported in Cro. Jac. and 5 Coke? On turning to them the court will find that neither of them arose on the statute of limitations, but on the statute of fines, under which it was necessary to have an interest in the lands at the time of levying the fine, and because by relation the tenant was carried back to the date of the fine, which struck Lord Holt as being an analogous case, he therefore thought himself justified in pronouncing this celebrated dictum, on which, and on which alone, our learned friends can find support. But whether an administrator can be thus carried back to the date of his letters for one purpose, and not for every purpose, remains as yet, in England, a moot question, for which the court are referred to the remark of a respectable lawyer, (Mr. Selwyn,) to be found in 2 Selwyn's N. P. 712, where he says, it seems that the time of limitation must be computed from the day on which the letters of administration were granted; and in the note 42 he says, this doctrine stands [**76]  on the single authority of Ch. J. Holt. And thus, we trust, we have fully convinced the court that this mighty, this stupendous principle, stands on no other foundation than Lord Holt's dictum, and that too pronounced when it was rendered totally unnecessary by the case then under consideration, and consequently there is no authority to prevent this court from giving to the subject the free exercise of its own judgment. The opposite counsel, however, fully convinced that the only authority on which they relied would be discovered, on examination, to be but "a baseless fabric," have undertaken to make an excuse for the obvious neglect of the appellee, and those whom he represents; and with this view they have drawn an affecting picture of their poverty and distress, and many other causes which created an almost unsurmountable obstacle to the maintenance of their rights. But on such a picture, and to such reasons, this court cannot look. The law alone is their guide, and that they must follow wheresoever it may lead them.

On the third bill of exceptions, whether the right of property is not quieted by length of time. The evidence now presented to the court shows a different case [**77]  from the one before them on the former appeal. It is now proved that Miss Fishwick was above the age of 21 when she died. Other facts show, that from 1775 to 1782, there had been no definitive administration or settlement of the estate. Mr. Muir in 1775 presumed the estate might be settled without an administration. In 1782 the question was who should administer. Darnall was called upon to say what he would do. Nothing between 1782 and 1786 to show what had been done. In 1786 the discussion was to whom Darnall had paid the estate, as Muir then said he had not received his share. He did not ask Darnall by what authority he had paid; but he asks to whom he had paid. This implies that Darnall had authority to administer and to pay the estate. The whole question then was, have you administered the estate; have you paid it? In the last item in Darnall's account in 1775, a credit is given for the value of Dinah. Here then was a complete conversion. There was either a conventional administration by Darnall, or a legal one; and this court would presume a conventional administration to be a legal one, when demanded by the justice of the case. The court will presume a grant, release, fine and [**78]  recover, &c. things necessarily matters of record; and if so, it is not asking too much of them, in a case of personal property, after 40 years possession, that they should presume a good title in the holder. It may be remarked in limine, that the defendant is not tied down to the presumption asked for in this bill of exceptions. The third and fourth bills of exceptions taken together, on prayers that the plaintiff is not entitled to recover, will cover any presumption to which the appellant was entitled. It may be inferred that Darnall was appointed executor by Miss Fishwick, as her full age has been proved. The court may presume she made a will, constituting Darnall her executor; or that he might have been her executor in some other way. In Toller, 35, and 2 Went. Off. Ex'r. 4, a distinction is taken between a universal executor and a special executor. If it is necessary to presume a will or letters of administration it is sufficient. If the presumption is controverted by positive proof, then it is overthrown; but it cannot be defeated by presumptive proof. One presumption cannot drive out another. There may be a presumption against positive evidence, as where a valid deed is presumed,  [**79]  although one is produced which is defective. It is asking nothing against a legal presumption, that the court should presume that Miss Fishwick made a will appointing Darnall her executor; and although the court cannot believe it, yet as Lord Mansfield said, in Eldridge vs. Knott, Cowp. 214, "there are many cases where from a principle of quieting possession the court has thought that a jury should presume any thing to support a length of possession." How is the fact that this presumption is asked in the absence of all proof that Darnall was the executor or administrator? Is it not strongly implied in Muir's letter of 1786, calling upon Darnall, as administrator or executor, that he had acted in one of those capacities? The possession too of the negroes by Darnall. These circumstances show that it is not in the absence of all proof that the presumption is asked. There is nothing in Muir's letters in 1775 and 1782, inconsistent with the fact of their being a will appointing Darnall the executor; for he might not choose then to take out letters, although appointed executor. But without letters he could act in all matters, but obtain judgments; and as there were no debts due to the estate,  [**80]  suits were unnecessary. If the court may direct the jury to presume a fact in the absence of all proof, why not do it here where there is proof? But it is said there is opposing proof. What is that proof? It is nothing but the silence of the claimants. The inference drawn, that the claim of Darnall to the property was because of his debt against the estate, is without foundation. No such inference can be drawn from the evidence. His having a debt due to him is a strong circumstance for supposing he administered. For every essential purpose the same parties who existed in 1775, exist now. If Darnall was executor de son tort, he was liable to be sued by the creditors or distributees. He paid the debts and funeral charges, and took into possession and appropriated all the assets. His account shows what he did. Any one of these acts would have constituted him executor de son tort. There may have been other creditors than those whom Darnall paid. There is no suggestion that the plaintiff is either a creditor or distributee. The distributees, if they could not sue Darnall at law, might have filed a bill in chancery against him; but they omitted to do so. In fine, no case has ever occurred [**81]  which called more imperiously on the court to interpose.

On the fourth bill of exceptions. There can be no question that the raising of negroes, until 25 years of age, is a full compensation for their services. This is an action sounding in damages, and the question is, when did the tort commence? The party had an election of one of two remedies. He might sue for the property, or for damages. In detinue there is no damages for the intermediate value of the property. In an action for a tort the measure of damages is the value of the thing, to be fixed when the damage arose, which is when the tort was committed. In this case the tort was consummated as far back as 1775, or at most in 1782.

On the second bill of exceptions. The plaintiff below offered in evidence a partial account of the administration on the estate of W. Fishwick. If any account was admitted in evidence it should have been the one showing a final settlement of that estate. The account offered in evidence is not a final, but is an intermediate account--an additional account. The defendant at the trial was taken by surprise; for he could not suppose this account would be produced. He had therefore no opportunity [**82]  of producing the final account which closed the administration. From the silence of the parties interested in that estate a final account ought to have been presumed. Darnall was only an executor in right of his wife, and on her death he was absolved from the administration. The letter in 1782, speaks of the small estate left by Miss Fishwick, and yet this account was produced to show the large amount of property of which she died possessed, and to resist the prayer of the defendant to recoupe from the damages the debts paid by Darnall. Suppose there was a suit for the legacy, it would be no defence to say the legacy was set off against the debts, &c. set up to be recouped from the damages in an action of trover.

On the sixth bill of exceptions. The defendant, in order to recoupe from the damages, offered to show that Darnall was entitled, and the defendant as his representative was entitled to the benefits of those acts which Darnall had done and performed for the relief of the deceased, and of her estate. This was resisted by the plaintiff, and the court below directed the jury, that under no circumstances could the deductions be made. The general principle is, that the jury [**83]  may recoupe such payments in the damages. But it is said this suit, not being against Darnall, the set-off cannot be allowed. The suit could be brought against the defendant in no other way, taking Darnall in the character of executor de son tort. He could be sued only as a naked wrongdoer. The record shows that the defendant claims and holds under Darnall under a general and particular devise of all the residue of his estate. If he can derive his title in any event, and has privity, he has privity for every purpose. Plain reason, and the common sense of the case show that the defendant is entitled to all the immunities and benefits to which Darnall would have been entitled if the suit had been against him. If Darnall did not make the payments, that was a question for the jury. But it is said that this doctrine of recouping in damages is entirely applicable to actions by creditors against an executor de son tort. It is admitted that Wentworth is good authority; but in the single instance cited he has not taken the proper distinction. The case in Ventris 349, does not bear out the position contended for on the other side. The general doctrine, as stated in S Bac. Ab. Buller, Toller,  [**84]  2 Blk. Com and several adjudged cases in Carthew and Modern Reports, lay down the doctrine simply as to the form of pleading. Though an executor de son tort cannot plead plene administravit, yet he may give it in evidence, and nonsuit the plaintiff. It has been argued that he might sell the property, and pay the debts, but it is denied that he can keep the estate, and by paying the debts have an allowance for such payment. The nature of the action against him is for unlawful acts, and if one of his acts is allowed as lawful, why not allow all? The rightful executor, it has been said, must sell the property, and that he cannot keep it, although he has paid debts to more than its value. This would be depriving him of all discretion. Why not permit him to do an act beneficial to the estate? If he does advance his own money in payment of debts, why not permit him to keep the property instead of sacrificing it by a sale, the proceeds of which might not be sufficient to pay half the debts? Toller, 238. 1 Com. Dig. tit. Administration, (B 10,) 341. If the general doctrine is that an executor de son tort may pay debts and be protected, he must be protected in paying them in the manner which [**85]  a lawful executor can do. If a rightful executor can retain, why may not an executor de son tort? That which a rightful executor may do, so may an executor de son tort. The authorities referred to in Bull. N. P. 48, go to sustain the general principle, that payments made by an executor de son tort shall be recouped in damages. But it seems that Buller doubts if this could be done in an action by the rightful executor against the executor de son tort. Toller, 365, is to the same effect, referring to Buller N. P. and Parker vs. Kett, 12 Mod. 471; and the last is one of the strongest cases to show that it may be done. But the authority of Whitehall vs. Squire, Carthew, 103, is full that on the general issue in trover an executor de son tort, although he cannot plead payments, may have them recouped in damages. This case shows that if he pays debts equivalent to the value of the property, he can keep it. But 2 Blk. Com. 507, is conclusive upon the subject. The doctrine of the writer is not to be impeached without imputing to him what never has been done. He lays down what is the general principle, after taking a view of all the authorities, and affirms the doctrine we contend for, and [**86]  says that which was justifiable in a rightful executor would be so in an executor de son tort, except retaining for his own debt.  

JUDGES:
The cause was argued at the present term before CHASE, Ch. J. and BUCHANAN, EARLE, MARTIN, NICHOLSON and DORSEY, J.  

OPINIONBY:
CHASE 

OPINION:

 [*399]  CHASE, Ch. J. delivered the opinion of the court. The court are of opinion, that the facts proved in this case on the part of the plaintiff, are sufficient to account for the delay which took place before the issuing the letters of administration to the plaintiff, and do repel the presumption that negro Dinah was legally transferred to the defendant, or those under whom he claims, and think the court below erred in directing the jury that they may and ought to make such presumption if they should find the facts and circumstances stated in the bill of exceptions to be true.
The opinion of the court is grounded on the fact that negro Dinah had been the property of Jane Fishwick, and there is no proof that Jane Fishwick was capable, at any time preceding her death, of making a legal transfer of Dinah; but the fair and necessary inference from the proof is, that she was a minor at that time.  [**87]  The claim set up by Darnall, or the defendant, to Dinah, seems to have originated subsequent to the death of Jane Fishwick, and was founded on the right to be reimbursed a claim he had against her, and for the money expended in burying the intestate, which in the most forcible manner resisted the presumption of a legal transfer. The small value of Dinah at the time of Jane Fishwick's death--the number of the representatives--their situation and distance from the place where Jane Fishwick died, and the bar set up by the defendant under the act of limitations, account satisfactorily for the delay on taking out letters of administration, and combined with her incapacity to make a legal transfer, and the nature of the claim of right set up by the defendant, resists conclusively the presumption arising from the great length of uninterrupted possession, the payment of the assessment, and supposed acquiescence.
JUDGMENT REVERSED, AND PROCEDENDO AWARDED.

 [*428]  The opinion of the Court was delivered by
CHASE, Ch. J. The court are of opinion, on the first bill of exceptions, that no right of action vested in any person to sustain an action of trover for negro [**88]  Dinah, and her descendants, before letters of administration were granted to the plaintiff in this suit; that the act of limitations could not begin to operate before letters of administration were taken out, and that the act of limitations did not attach until the demand and refusal, proved to have been made on the defendant on the 16th of June 1812. The court are of opinion, that the act of limitations is no bar in this suit, and they concur with the court below in refusing to grant the prayer, and to give the instruction to the jury, as expressed in the first bill of exceptions.
The court also concur with the court below as to the opinion expressed in the second bill of exceptions.
The court are of opinion, on the third bill of exceptions, that the proof offered by the defendant, when contrasted with the proof on the part of the plaintiff, does not warrant the said presumption; and this court concur with the court below in refusing to give the opinion and direction as prayed on the part of the defendant, and stated in the third bill of exceptions.
The court are of opinion, on the fourth bill of exceptions, that the plaintiff is entitled to recover damages [**89]  to the amount of the value of Dinah, and her descendants, named in the declaration, together with damages for the detention from the time of the demand and refusal proved in this case; and the court below were right in their refusal to give the opinion and directions as stated in the fourth bill of exceptions.
The court are of opinion, on the fifth bill of exceptions, that all that evidence offered and mentioned in the statement of facts in the said exception in the following words, 

 [*429]  to wit: "That the said letters were granted to the plaintiff by one of the deputies in the office during the recess of the court, and in the absence of the witness. And the defendant thereupon swore J. Burch, the deputy who had granted the said letters, who stated that the said letters of administration were granted by him in the recess, and without the authority of the orphans court made known to him by the court in that particular case, but according to the usual practice of the office, which practice was known to and approved by the court. And the records of the said court were produced, whereby it appeared that the said court was not in session on the day of issuing of the [**90]  said letters of administration to the plaintiff, and it did not appear that any application for said letters was made to the said court. But the plaintiff had applied to the register, during the recess of the court, some weeks before the granting the same, for letters of administration on the said estate," was illegal and inadmissible; because the direct tendency of such evidence was to impeach and nullify the said letters of administration, by showing that they were not granted by the orphans court of Prince-George's county, but by a deputy clerk in the office of the register of wills of that county, to whom the court could not delegate any such authority. That the said letters of administration were legally efficient until revoked, being clothed with all the requisite legal solemnities to communicate power and authority to the plaintiff to administer on the estate of J. Fishwick; and this court concur with the court below as to their admission of the preceding part of the evidence stated in this bill of exceptions.
The court concur with the court below as to the opinion expressed in the sixth bill of exceptions, this court being of opinion, that the said claims cannot [**91]  be recouped in damages in this case, inasmuch as the defendant claimed the negroes in his own right, and in opposition and disclaimer of the trust under which they were transmitted to him; and inasmuch as the same can be adjusted on a final settlement of the estate of J. Fishwick, if the parties should elect to go into such adjustment.
It appears by the evidence, that R. Darnall was the father-in-law of J. Fishwick, having married her mother, who was living when J. Fishwick died. That J. Fishwick lived with her mother and father-in-law, and died in his house, was possessed of Dinah, and a spinet, at the time of her death. From the evidence it is fairly and justly to be presumed that Darnall, consistent with his moral duties, possessed himself of the property of J. Fishwick as curator, to preserve it for the benefit of her creditors and representatives. That this fiduciary possession continued during his life; for at no time did he manifest, by his words or conduct, any intention to administer on her estate, but was particularly solicitous that some other of the legal representatives should administer. That Darnall, as a creditor, as one of the legal [**92]  representatives, and as the husband 

 [*430]  of the mother of J. Fishwick, and being best acquainted with her affairs, was best entitled to the administration; but he pertinaciously adhered to his resolution, during his life, not to burden himself with the administration, and determined to hold the property subject to the claim of her creditors and legal representatives.
It is apparent that it was as much the duty of Darnall to administer as any of the representatives, and no blame or neglect can be imputed to them which will not equally attach to him for the delay, and no inference from thence can be made in his favour. And these circumstances, combined with other facts in the case--such as there being no will, or proof that Darnall claimed as executor, preclude the presumption that he acted as executor, and fully administered the estate by paying debts, &c. That the defendant's title to Dinah, and her descendants, is derivative, being transmitted to him under the will of Darnall as residuary legatee, and he held them subject to the same trust that Darnall did, until the time of the demand and refusal.
A trustee cannot avail himself of the act of limitations;  [**93]  and it requires plain, strong, and unequivocal proof of his renunciation of the trust to divest himself of it for the purpose of benefiting himself by the act of limitations, to destroy the rights and interest of the cestui que trust.
Length of possession is the strong fact on which the presumption was prayed. The possession is accounted for by the proof, which shows how it was acquired by Darnall, how continued, and how transmitted to his representatives, not inconsistent with his moral duties, his probity or honour, nor in derogation of the rights and interest of the creditors and legal representatives of J. Fishwick, but for the preservation of the property for the benefit of her creditors and legal representatives. And by this proof is the presumption most conclusively repelled.
The defendant, as the representative of Darnall, as trustee or fiduciary possessor of Dinah, and her descendants, on an equitable adjustment of all rights, will be entitled to an allowance for all expenses incurred by him in maintaining and clothing Dinah, and her descendants, and for all monies due or paid on her account, on accounting for the use and possession of Dinah, [**94]  and her descendants, and all profits and benefits resulting therefrom, to the time of the demand and refusal. In this way the characters of all concerned will stand unimpeached, and justice will be administered on the broad basis of equity.
JUDGMENT AFFIRMED.