1 of 33 DOCUMENTS 

THE STATE, use of THE LEVY COURT, &c. vs. MERRYMAN.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

7 H. & J. 79; 1826 Md. LEXIS 19 

June, 1826, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court. Debt by the appellant against the appellee, (the defendant in that court,) brought upon the following bond, viz. "Know all men by these presents, that we William Merryman, John Merryman, of Benjamin, and Nicholas Merryman, all of Baltimore county, in the state of Maryland, are held and firmly bound unto the said state of Maryland, in the full and just sum of fifty-one thousand four hundred and forty-one pounds two shillings and sixpence, current money of the state of Maryland, to be paid to the said state; to the which payment, well and truly to be made and done, we bind ourselves, our and each of our heirs, firmly by these presents. Sealed with our seals, and dated this 20th day of December, 1811. The condition of the above obligation is such, that if the above bound William Merryman, as collector of the tax for Baltimore county, shall well and faithfully execute his office, and the several duties required of him by law, and shall well and truly account for and pay to the justices of the levy court of Baltimore county, or their order, the several sums of money which he shall receive or be answerable for by law, at such time as the law shall direct,  [**2]  then the above obligation to be void, else to be and remain in full force and virtue in law." The defendant prayed oyer of the bond, and pleaded--1. That the levy court of Baltimore county did not, at any time between the 1st day of March and the 1st of October 1811, adjust, lay or impose, any county levy for Baltimore county aforesaid, agreeably to the provisions of the act, entitled, "An act for the establishment and regulation of the levy courts in the several counties of this state." 2. General performance, preceded by an oyer of the bond. Replication to the first plea, that the justices of the levy court for Baltimore county, between the 1st of March and 1st of October 1811, to wit, on the 12th of March, in the year aforesaid, did convene and meet together at the court-house in the city of Baltimore, in Baltimore county aforesaid, to adjust the ordinary and necessary expenses of Baltimore county, including an allowance for the poor of said county, and for public roads, and for the payment thereof, with a commission for the collection of the same, and to impose an assessment or rate, on all property within said county, sufficient to defray the expense of such county charges, according [**3]  to the acts of assembly in such cases made and provided; and being so convened and met together for the purposes aforesaid, the said justices of the levy court did then and there adjourn from time to time for the purposes aforesaid, until the 20th of December, in the year aforesaid, when the said justices did, to wit, at the county aforesaid, adjust the ordinary and necessary expenses of the county aforesaid, and did impose an assessment or rate, on all property within said county, sufficient to defray the county charges, to wit, the sum of £  20,095 6 3 current money, to wit, at the county aforesaid; of all which premises the said William then and there had notice. To this replication the defendant demurred, and the plaintiff joined in demurrer. Replication to the second plea, (after protesting that W. Merryman had not performed, &c.) that at the time of making the said writing obligatory, in the declaration aforesaid mentioned, the said William was appointed collector of the county charges and public assessments imposed by law on the inhabitants of said county, and duly authorized and empowered to collect and receive the same; and that before the making of the said writing obligatory,  [**4]  to wit, on the 20th of December 1811, at a levy court held at the city of Baltimore, in and for Baltimore county, there was assessed and levied by the justices of the levy court the sum of £  20,095 6 3 current money, upon the assessable property in said county, and to be collected and paid to the said justices of the levy court, or to their order. That the said William then being collector of the assessments and county taxes of the said county for the year 1811, thereunto duly authorized and appointed, then and there had notice that the said sum of £  25,720 6 3 current money, was assessed and levied by the justices aforesaid; and the said William, as collector of the assessment and taxes aforesaid, was then and there entrusted, authorized and empowered, to collect and receive the same, to wit, at the county aforesaid; yet the said William, the said sum of current money, or any part thereof, hath not well and truly accounted for or paid to the said justices of the said levy court, or their order, but hath wholly neglected and refused so to do; and this the said state, by its said attorneys, is ready to verify, &c. And for further breach, &c. that by an act of the general assembly [**5]  of Maryland, begun and held at the city of Annapolis, on Monday, the 5th of November 1810, entitled, "An act authorizing the raising of a sum of money to complete the court-house, and to erect a watch-house in the city of Baltimore," it was, amongst other things, enacted, "that the levy court of Baltimore county be and they are hereby authorized and required, to assess and levy upon the assessable property of said county, in such successive annual installments, any sum not exceeding $ 20,000 annually, as they may from time to time think proper, as well for the payment of any debts or expenses heretofore contracted or incurred, as for the raising such sums as may be hereafter necessary for the finishing and completing the new court-house in the city of Baltimore; the first installment to be assessed by the said court at their first session after the passage of the said act for the purpose of laying the county levy, and the same to be collected by the collector of said county." That after the passing of the said act, and before the making of the said writing obligatory, at a levy court held next after the passing of said act for the purpose of laying the county levy, to wit, at a levy [**6]  court held at the city of Baltimore, in and for Baltimore county aforesaid, on the 20th of December 1811, there was assessed and levied, for the purposes in the said act mentioned, as before stated, by the justices of the levy court for Baltimore county aforesaid, the sum of £  5,625 current money, to be collected from the assessable property of said county, pursuant to the directions of the said act. That at the time of making the said writing obligatory, the said William was duly authorized to collect the assessment and county taxes of said county for the year 1811, and then and there had notice that the said sum of £  5,625 current money, was assessed and levied by the said justices for the purposes aforesaid; and the said William, as the collector of the assessments and taxes as aforesaid, was then and there, by virtue of the act of assembly aforesaid, authorized and empowered to collect and receive the said sum of money last mentioned, to wit, at the county aforesaid; yet the said William, the said sum of current money, or any part thereof, hath not well and truly accounted for and paid, &c. The defendant rejoined to the second replication--that as to the first breach in the said [**7]  replication alleged, as consists in not accounting for and paying to the justices of the levy court as aforesaid, or their order, the sum of £  20,095 6 3, stated to have been assessed and levied by the said justices of the levy court upon the assessable property of said county, that said state its action aforesaid thereof against him ought not to have and maintain; because he saith that he the said William, the said sum of £  20,095 6 3, to them the said justices of the levy court, or their order, before the impetration of the original writ in this action, did well and truly account for and pay over, to wit, at the county aforesaid; and of this he puts himself upon the country, &c. Issue joined. And as to so much of the second breach, in said replication alleged, as consists in not accounting for and paying to the said justices of the levy court, or their order, of the sum of £  3,750, part of the said sum of £  5,625, so as aforesaid stated to have been assessed and levied by the said justices of the levy court upon the assessable property of said county, that the said William, the said sum of £  3,750, to them the said justices of the levy court, or their order, before the impetration [**8]  of the original writ in this action, did well and truly account for and pay; and of this he puts himself upon the country, &c. Issue joined. And as to so much of the said second breach, as consists in not paying to said justices of the levy court, or their order, the sum of £  1,875, the residue of said sum of £  5,965, so as aforesaid suggested to have been levied by the said justices of the levy court upon the assessable property of said county, that the said justices of the levy court did not, at a levy court held for the purpose of laying the county levy next after the passing of the said act of assembly, entitled, "An act authorizing the raising of a sum of money to complete the court-house and erect a watch-house in the city of Baltimore," assess and levy the said sum of £  5,625 current money, upon the assessable property of Baltimore county; and this he is ready to verify, &c. There was a general demurrer by the plaintiff to the rejoinder to that part of the second breach alleged in the replication as last above mentioned, and joinder in demurrer. The county court sustained the demurrer to the replication to the first plea, and overruled the demurrer to the rejoinder to the [**9]  latter part of the second breach alleged in the replication to the second plea; and rendered judgment to the defendant; and the plaintiff appealed to this court.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

By the acts of 1795, ch. 53, and 1798, ch. 34, the justices of the levy courts of the several counties are authorized and requited, on some day between the 1st of March and the 1st of October annually, to meet to adjust the ordinary expenses of their several counties, and to impose an assessment sufficient to defray such charges, and to appoint a collector of the same--Held, that the power vested in the levy courts to impose taxes is a specially delegated power, and like other specially delegated powers, must be strictly pursued; and that such court had no authority, although it met between the 1st of March and the 1st of October, to adjourn to any day beyond the 1st of October, for the purpose of completing the levy; and any tax imposed at such adjourned meeting, was without authority, and illegal; and although such tax was collected by the collector appointed for the purpose, yet an action on his bond could not be sustained for the amount so collected.

In giving judgment on a demurrer to a plea, &c. the court go to the first error.

When there are issues in law and in fact, and it appears by the judgment on the former that the plaintiff has no cause of action, it is not necessary that the latter should be tried by the jury.  

COUNSEL:
Heath and R. Johnson, for the Appellant, contended--1. That for the purpose of assessing and levying the county tax, it was sufficient for the levy court to convene between the 1st of March and the 1st of October, and proceed with the business entrusted to it; and that having so done, they had the power to adjourn from time to time, until the 20th of December, and then to lay the assessment or levy. 2. That the levy court, so convening in March, and having the power or right to adjourn from time to time, and having adjourned from time to time to the 20th of December 1811, and then imposed the sum of £  5,625 upon the county for completing the new court-house, substantially complied with the provisions of the act of 1810, ch. 168. 3. That the court below erred in taking the decision of the issues in fact from the jury, and in deciding them itself.

To show that the justices of the levy court, having met between the 1st of March and the 1st of October annually, for the purpose of adjusting the ordinary [**10]  and necessary expenses of their county, might adjourn from time to time after the 1st of October, and complete the levy, they referred to the acts of 1794, ch. 53, s. 1, 9, and ch. 10, s. 3; and 1798, ch. 34, s. 5. They contended, that the cases of Ellicott, et al. vs. the Levy Court, &c. 1 Harr. & Johns 36, and Quynn vs. The State, use of Pue, et al. Ibid 359, did not affect this case.

The second rejoinder, which alleges that the defendant paid over a part of the sum levied, and as to the residue, viz. the whole amount, states that there had been no levy made, was inconsistent, and no answer to the replication.

If it is objected that there is no averment in the replication that the defendant was appointed collector, and that he accepted, &c. it may be answered that that fact is not denied in the plea, and therefore need not be averred.

Williams, (District Attorney of U. S.) and Mitchell, for the Appellee. There were four issues in this case, two of law, and two in fact. The issues in fact were not noticed by the court, nor was it necessary to notice them, the whole ground having been disposed of by the decision on the issues in law. Lawe vs. King, 1 Saund. 80, (note [**11]  1.) O'Brien, et ux. vs. Hardy, 3 Harr. & Johns. 434. Chapman vs. Dixon's Adm'x. 4 Harr. & Johns. 527. And 1 Chitty's Plead. 647. They contended--1. That the replications were defective in not averring that the defendant was appointed collector of the county, that he accepted, took the oaths, and gave bond as required by law. 2. The bond was defective in not being, according to the formula prescribed by the act of 1794, ch. 53, and in being more than double the amount of the assessment imposed and to be collected. 3. That it was a joint and not a several bond. It was joint as to the obligors, but several as to their heirs; and the action is brought in severalty against one of the obligors. Gordon vs. Austin, 4 T. R. 611. South vs. Tanner & Jones, 2 Taunt. 254. The demurrer of the defendant to the first replication extends to this defect of suing a joint as a several bond. 4. The demurrer to the first replication is rightly decided in favor of the defendant, because the act of 1794, ch. 53, s. 1, requires that the levy should be completed between the 1st of March and the 1st of October in the year. Ellicott, et al. vs. The Levy Court, &c. 1 Harr. & Johns. 359. Quynn vs. The State, use [**12]  of Pue, et al. Ibid 36. The acts of 1794, ch. 10, and 1793, ch. 43, have nothing to do with the question, those acts having been repealed by that of 1794, ch. 53. It was necessary that the levy court should complete the duties imposed on them before the month of November, as, under the constitution, new justices might then be appointed. The authority of the court was a special one, and ought to have been strictly pursued. Kerr, et al. vs. The State, use of Levy Court, &c. 3 Harr. & Johns. 560. 5. The plaintiff's demurrer to the second rejoinder was properly overruled. The act of 1810, ch. 168, relative to the new court house, required the levy to be made at the first session of the levy court, (which is shown to have been on the 12th of March,) and it was only made on the 20th of December following; and further, the act of 1794, ch. 53, directs the court to meet between the 1st of March and 1st of October annually. The demurrer admits the fact that the court did not meet at the time required; and if they did not so meet, they cannot sustain the action. The act of 1817, ch. 22, shows what construction ought to be given to the act of 1794, ch. 53. The first act for building the court-house [**13]  passed in 1805, ch. 91. This act required that the bond of the collector should be given to the levy court, and that the money levied should be paid to the commissioners appointed to superintend the building. The acts of 1808, ch. 75, and 1809, ch. 196, contain similar provisions; but the act of 1810, ch. 168, repeals those acts, and makes no provision respecting the collector's bond, or to whom the money levied is to be paid. 6. The act of 1794, ch. 53, provides, that in case of an action brought on the collector's bond, an attested copy should be produced in evidence. Here the action is brought on a bond not proved to be the original, nor is it an attested copy.

The second breach in the replication to the plea of performance was insufficient, as there was no averment that the object of the assessment was that required by the act of 1810, ch. 168, which was an extraordinary assessment, and not required by the act of 1794, ch. 53. It was a special power delegated to the levy court, which ought to have been strictly pursued. The necessity of the object in laying the levy is omitted in the replication. The bond is, that the collector shall pay such sum as he shall collect; and the [**14]  replication does not aver that any money was received by the collector. The same objection is applicable to the replication to the first plea. In that replication there is no breach at all that the collector collected the money, and did not pay it over. That such averments were necessary, they referred to 5 Bac. Ab. tit. Obligation, 172. Cornwallis vs. Savery, 2 Burr. 773. Lord Arlington vs. Merricke, 3 Saund. 411, (note.) Shum vs. Farrington, 1 Bos. & Pull. 640. 1 Chitty's Plead. 398. The bond is not exactly in double the amount of the sum levied. Smith vs. Jansen, 8 Johns. Rep. 111. The rejoinder to the second replication is payment in part, and no legal levy as to the residue. This is partly a question of fact, and partly a question of law; and may be pleaded as two distinct facts. If the matter is badly pleaded as to the fact, but is good as to the residue, and the demurrer goes to the whole, it cures the defect as to the fact pleaded. Instead of demurring to the whole, the plaintiff should have taken issue on that part as to the fact, and demurred to the residue. 5 Com. Dig. tit. Pleader, (C 85,) 378, pl 2. Ibid (C 32.) Co. Litt. 304. 1 Chitty's Plead. 260. Pinkney vs. The Inhabitants [**15]  of, &c. 3 Saund. 379, 380. No action of debt could be brought on the bond against the defendant alone. There should have been a joint scire facias on the bond against the principal and sureties, and not an action of debt, as directed by the act of 1794, ch. 53, s. 2, like a scire facias on a loan office bond, as directed by the acts of 1769, ch. 14, s. 12, 13; 1773, ch. 26, s. 9, 10; 1780, ch. 24; 1781, ch. 23; 1784, ch. 55; and 1785, ch. 83, s. 11, ch. 74, s. 6. Here was a new power created--a new tribunal erected upon a new subject matter, with exclusive authority to proceed in a particular form of action. No other mode can be adopted than the one prescribed. In the case of heirs and devisees under the statute of W & M. ch. 14, as that statute directs heirs to be joined, in debt on bond, it is necessary both in law and equity. Gawler vs. Wade, 1 P. Wm. 99. Wilson vs. Knubley, 7 East, 128. 1 Chitty's Plead. 39, 40. 2 Chitty's Plead. 160, (note.) Jefferson vs. Morton, 2 Saund. 7, (note 4.) Bac. Ab. tit. Heir, (F.) Vin. Ab. tit. Heirs & Devisees, (Z.) Warren vs. Stawell, 2 Alk. 125. But whether it be an action of debt or a scire facias, it must be jointly against the principal and sureties.  [**16]  Cabell vs. Vaughan, 1 Saund. 291, (note 4.) The time of meeting of the levy court is stated in the second replication to be in December, and nothing is said about an adjournment of the court. If the time was material at all, then the meeting, as here stated, was not at the period prescribed by law. October 1780, ch. 26; 1790, ch. 33, s. 2, 9; 1791, ch. 61; 1793, ch. 46; 1794, ch. 10. The last act, section 3, is restricted in the preamble to particular counties. Fisher vs. Blight, 2 Cranch, 400. 6 Bac. Ab. 381. Where time is prescribed it must be adhered to. The day is material. The King vs. The Mayor and Burgesses of Tregony, 8 Mod. 111, 112. The King vs. The Commissioners of Sewers, &c. 2 Ld. Raym. 1479. S. C. 2 Stra. 763. Doe vs. Milborne, 2 T. R. 721. Taylor vs. Horde, 1 Burr. 60. 6 Com. Dig. tit. Power, (C 6,) (B 3;) Rex vs. The Inhabitants of Polsted, 2 Stra. 1263. Rex vs. Fisher, Ib. 865. Rex vs. Inhabitants of Haughton, 1 Stra. 83. 4 Com. Dig. 672. Dakin's case, 3 Saund. 291. The levy lists are to be transmitted to the general assembly in November, which shows that the levy must be completed before November.  

JUDGES:
The cause was argued before BUCHANAN, Ch. J. and STEPHEN, ARCHER,  [**17]  and DORSEY, J.  

OPINIONBY:
BUCHANAN 

OPINION:

 [*88]  BUCHANAN, Ch. J. delivered the opinion of the court. By the first section of the act of 1794, ch. 53, and the third section of the act of 1798, ch. 34, the justices of the levy courts of the several counties of the state, are "authorized and required, on some day between the first of March, and the first of October annually, to meet at the court-house of their respective counties, to adjust the ordinary and necessary expenses of their several counties, &c. and to impose an assessment, &c. sufficient to defray such charges;" "and to appoint a person or persons to collect the same." And by the first section of the act of 1810, ch. 168, the levy court of Baltimore county, was authorized and required to assess and levy, in successive annual installments, not exceeding twenty thousand dollars annually, such sum as should be necessary, among other things, for completing the new court-house in the city of Baltimore; "the first installment to be assessed at their first session (after the passage of that act,) for the purpose of laying the county levy, and to be collected by the collector of the county."
William  [**18]   Merryman, the defendant, was appointed by the levy court collector of the taxes for Baltimore county, and on the twentieth of December, in the year 1811, gave his bond to the state as such, on which bond this suit was instituted. After craving and obtaining oyer of the bond, he pleaded, 1st. That the levy court of Baltimore county did not, at any time between the first of March and the first of October, in the year 1811, impose any county levy for Baltimore county, agreeably to the provisions of the act of 1794, ch. 53. And 2d. General performance. The replication to the first plea alleges, that the justices of the levy court of Baltimore county did meet at the court-house in the city of Baltimore, between the 1st of March and the 1st of October, in the year 1811, to wit, on the 12th of March, to adjust the ordinary and necessary expenses of Baltimore county, &c. according to the acts of assembly, &c. and for that purpose adjourned from time to time, until the 20th of December 1811, when they adjusted the ordinary and necessary expenses of the county, &c. and imposed a tax sufficient to defray the county charges, of £  20,095 6 3, of which the defendant [**19]  had notice, &c. To which there was a demurrer by the defendant, and joinder in demurrer.

 [*89]  The replication to the second plea, (the plea of performance,) alleges--First. That at the time of executing the bond, the defendant was appointed collector of the county charges of Baltimore county; and that before the making of the bond, to wit, on the 20th of December 1811, at a levy court held in the city of Baltimore, there was assessed and levied, &c. the sum of £  20,095 6 3, to be collected and paid to the justices of the levy court, or their order, of which the defendant had notice, and which, as collector of the taxes, he was duly entrusted and empowered to collect; and assigns for breach, that he has not well and truly accounted for or paid to the justices of the levy court, or their order, the said sum of money, or any part thereof, &c. And secondly--After reciting so much of the act of 1810, ch. 168, as authorizes and requires the levy court of Baltimore county to impose a tax for completing the new court-house, alleges, that before the making of the bond, at a levy court held for the purpose of laying the county tax, &c. next after the passing [**20]  of that act, to wit, on the 20th of December 1811, there was assessed and levied, for the purposes mentioned in that act, the sum of £  5,625, of which the defendant had notice; that he was, at the time of making the bond, duly authorized to collect the county taxes; and that as collector of the county taxes he was authorized and entrusted to collect the tax imposed in virtue of the act of 1810, ch. 168; and assigns for further breach, that he has not well and truly accounted for and paid to the justices of the levy court, or their order, the last mentioned tax, or any part thereof, &c. Issue was joined on the first breach assigned in the replication to the plea of performance; and as to the second breach, the defendant rejoined payment of a part of the sum of £  5,625, alleged to have been assessed and levied, &c. and as to the residue of that sum, that the justices of the levy court did not, at a levy court held for the purpose of laying the county levy, next after the passage of the act of 1810, ch. 168, assess and levy the said sum of £  5,625, &c. to which there was a demurrer, and joinder in demurrer.
The judgment of the court below was against the plaintiff,  [**21]  the appellant here; and the material question presented for consideration is, whether the justices of the levy court of Baltimore 

 [*90]  county could legally, and within the scope of their authority, impose a tax either for defraying the ordinary expenses of the county, or for completing the court-house, at any time except between the first day of March, and the first day of October annually? It has been urged in argument, that independent of the necessity of the thing, the fifth section of the act of 1798, ch. 34, which entitles each of the justices of the levy court to a compensation for his services, "for every day he shall attend to the duties of his office," clearly recognizes their power to adjourn from day to day; and that express authority is given by the third section of the act of 1794, ch. 10, to the justices of the levy courts throughout the state, to adjourn their respective courts from time to time, at their discretion, for the purpose of laying the levy; and therefore, that they are not bound by the act of 1794, ch. 53, to make the levy between the 1st of March and the 1st of October, but may adjourn to any time beyond the 1st of October for that [**22]  purpose. It cannot be doubted that the respective levy courts may be adjourned from day to day; and it may also be admitted, that the enacting clause of the third section of the act of 1794, ch. 10, authorizing, in the language of that clause, "the justices of the levy courts of the several counties of this state, to adjourn their respective courts from time to time, for the purpose of laying the levy, as they may think necessary," does extend to the levy courts of all the counties in the state, though the preamble relates only to particular counties; yet that does not obviate the objection to the proceedings of the levy court of Baltimore county, as exhibited in the pleadings in this cause. Before the act of 1794, ch. 53, particular times were fixed by law for the meeting of the justices of the levy courts of the several counties, but there was no time prescribed within which the levies were to be made; and supposing the enacting clause of the third section of the act of 1794, ch. 10, to extend to all the counties in the state, they might. in their discretion, have adjourned from time to time, to any time within the year, there being no other limit. But it [**23]  was thought necessary by the legislature to make an alternation in this respect; and accordingly by the act of 1794, ch. 53, the levy courts of the respective counties of the state are required to meet, in the words of the law, "on some day between 

 [*91]  the first day of March and the first day of October annually, to adjust the ordinary and necessary expenses of their respective counties, and to impose an assessment," &c. If it was not the intention of the legislature that the assessment should be imposed before the 1st of October, it was unnecessary to restrict the meeting for that purpose within those limits, and would have been sufficient to direct the meeting to be on some day after the first of March, leaving the levy courts at large to adjourn, in their discretion, to any time within the year, as before, if such discretionary power was meant to be vested; but the confining the meeting to impose the assessment to a time between the first of March and the first of October, shews it to have been the intention of the legislature, that it should not be imposed after the first of October, and restrains the power of adjournment beyond that time, which before had no limit within [**24]  the year. No other construction can well be given to that act. The space between the first of March and the first of October annually, is the time allotted to the justices of the several levy courts for imposing the respective levies, and they are not authorized to meet for that purpose at any time after the first of October; but the meeting, whether by adjournment or otherwise, at which the assessment is imposed, is required to be within the limits so prescribed, with no other restriction, or any power of adjournment, that may have before existed, than the merely confining the exercise of it within those limits. The latitude allowed between the first of March and the first of October, assists in showing the intention of the legislature, and the restricting the authority to impose the assessment, to the first of October, was necessary for the purpose of giving time to the collectors to make their collections.
The power vested in the levy courts to impose taxes, is a specially delegated power, and like other specially delegated powers, must be strictly pursued; which does not appear to have been done in this case. The replication to the first plea alleges, that the justices of [**25]  the levy court of Baltimore county met on the 12th of March 1811, adjourned from time to time until the 20th of December 1811, when they imposed the tax to defray the ordinary county charges; which adjournment to the 20th of December, and meeting of the levy court on that day, 

 [*92]  being both without authority, the imposing the tax was illegal, and the replication shows no cause of action in the appellant; the demurrer therefore was properly sustained.
As to the replication to the plea of performance, the allegation, both as respects the imposing the tax, which is stated to have been laid for defraying the ordinary county charges, and the tax for completing the court-house is, that it was done at a levy court held on the 20th of December 1811, without stating it to be by adjournment, or that there had been any meeting for that purpose, by the justices of the levy court, between the 1st of March and the 1st of October. And as it is perfectly clear, that the justices of the levy court had no authority to meet for the first time, for the purpose of imposing the county levy on the 20th of December, or at any time after the 1st of October, their proceedings, as set out in that [**26]  replication, were wholly illegal. The replication, therefore, shows no sufficient cause of action; and as the demurrer to the rejoinder carried the court up to the first defect, the demurrer was properly determined in favour of the defendant, no matter how defective the rejoinder may be.
There is nothing in the objection, that the issues in fact were taken from the jury, and decided by the court; the demurrers being determined in favour of the defendant, and it appearing upon the whole that the plaintiff had no cause of action, the court did right in giving judgment for the defendant.
There were several questions raised in argument on points of special pleading, which, under the view that has been taken of the case, it is not thought necessary to examine.
JUDGMENT AFFIRMED.  

2 of 33 DOCUMENTS 

LAURENSON vs. THE STATE, use of THE LEVY COURT, &c.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

7 H. & J. 339; 1826 Md. LEXIS 41 

June, 1826, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court. This was an action of debt on a collector's bond, executed to the state on the 18th of December 1819, by Charles Keenan, Hugh Sweeny, Philip Laurenson, the defendant, (now appellant,) and Neal M'Fadon, reciting that Keenan had been appointed by the levy court for Baltimore county, collector of the county rate or assessment for the year 1819, imposed by the said court on all the property in that part of the city of Baltimore, comprising the 1st, 10th, and 11th wards of the said city, and conditioned, "that if the above bound Charles Keenan shall faithfully discharge his duties as collector of the tax for the first, tenth, and eleventh wards of the city aforesaid, then," &c. It was agreed by the counsel of the parties in the several actions depending on the same bond against the sureties, "that the defendants in these cases shall plead nil debet, and that on the trial of the issues on that plea they shall severally be entitled to make all such legal objections, and give all kinds of evidence, which they could be entitled to make or give by or under any mode or form of pleas or pleading which could be legally used." The defendant then pleaded nil debet,  [**2]  and issue was joined.

At the trial the plaintiff gave in evidence the assessment and appointment made by the justices of the levy court for Baltimore county, for whose use this suit is prosecuted, and among others, that of Charles Keenan as collector of the assessment and tax imposed on property in the 1st, 10th, and 11th wards of the city of Baltimore, authorizing him to collect from the owners of property assessed in the said wards, at the rate or sum of one dollar on every hundred dollars so assessed. He also gave in evidence the bond entered into by Keenan, as before mentioned, which was proved by the subscribing witnesses thereto, on the 18th of December 1819, and the approval thereof, and order for its being recorded, and of its being recorded on the same day among the records of Baltimore county court by William Gibson clerk. He further gave in evidence the following paper or statement, the signature to which was admitted to be in the handwriting of Charles Keenan, the principal obligor in the said bond, viz. "Amount of the assessment of property in the old first, tenth, and eleventh wards of the city of Baltimore, on which the county levy has been laid in the year 1819,  [**3]  and to be collected by Charles Keenan, appointed collector of the same; and also a statement of the amount of property in the tenth and eleventh (old) wards, on which the sum of seven hundred and fourteen dollars and seventy-one cents is to be collected, towards defraying the expenses of the commissioners, surveying, &c. of the said property, for excluding the same from the direct tax of the city, viz.

________________________________________________________________________________

First Ward,	$ 595,058	
Tenth Ward,	550,639	
Eleventh Ward,	515,643	
	$ 1,661,340	at 53 cents per $ 100,	$ 8,805 10	
Excluding direct tax	
    10th Ward,	$ 210,727	
Ditto 11th Ward,	209,690	
	$ 420,417	at 17 cents per $ 100,	714 71	
			$ 9,519 81	
________________________________________________________________________________

I, Charles Keenan, being appointed by the justices of the levy court for Baltimore county, collector as above stated, have received the books containing the alphabetical lists of the persons names in each of the said wards, with the amount of each person's assignment annexed. The whole amount to be collected, according to the above statement, including my commission at six per cent. nine thousand five hundred and nineteen dollars and eighty-one cents. In witness whereof, I have set my hand in the [**4]  city of Baltimore, this eighteenth day of December 1819.     Chas. Keenan.

Witness, Robert Walsh."

It was admitted that William Gibson was, on the 18th of December 1819, and continued to be, the clerk of Baltimore county court. The defendant then gave in evidence, that the said Keenan was born in Ireland, and had not been naturalized in this country, but had been living in the city of Baltimore from the end of the year 1815; and then prayed the opinion of the court to the jury, that the plaintiff was not entitled to recover. Which opinion the Court, [Archer, Ch. J. and Hanson and Ward, A. J.] refused to give. The defendant excepted. Verdict for the plaintiff, and damages assessed to $ 517 76. Judgment for the plaintiff on the verdict for the debt, (the penalty of the bond,) and costs. The defendant appealed to this court.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

K was appointed a collector of taxes under the act of 1794, ch. 53, and gave bond, with security as such, and proceeded to collect. In an action of debt on the bond against L, one of the sureties, to recover such collections--Held, that it was not competent for L to defend himself upon the ground that K had not taken the oath prescribed by law. That as K was regularly appointed collector, and bonded and acted as such, he was to be presumed to have complied with all other necessary qualifications; that in an action against him he could not defend himself upon the ground of his own neglect, and that his securities, in relation to such a defence, were in point of law, in the same situation.

In an action of debt on a bond with a collateral condition, breaches must be assigned; but where there was an agreement that the defendant should plead nil debet, and that he should, on the issues on that plea, give in evidence all matters which he could give under any power of pleading which could be legally used--Held, that although it was a loose mode of proceeding it would be sanctioned, and that its true meaning was to waive on both sides all errors in the pleadings, and to dispense with the necessity of the plaintiff's assigning breaches.  

COUNSEL:
Raymond and R. Johnson, for the Appellant. 1. The person appointed collector was an alien, and did not make the declaration, or take the oath prescribed by the act of 1794, ch. 53, s. 2, to be taken by a collector, and that therefore the appellant, being a surety, was not liable on the bond. 2. No breaches were suggested by [**5]  the plaintiff in pursuance of the statute. 3. The copy of the bond offered in evidence was not properly certified. 4. It does not appear that Keenan was appointed collector, and authorised to collect the tax imposed, nor was it proved that he did collect it, or any part of it. 5. The agreement entered into by the counsel of the parties, was only that the defendant might be placed in the same situation as if he had pleaded performance, &c. It does not authorise the plaintiff to do that which could not be done without the agreement. It was not intended to benefit the plaintiff, but solely for the benefit of the defendant. The plaintiff was therefore bound to assign the breaches. Wilmer vs. Harris, 5 Harr. & Johns. 1. Van Benthuysen vs. De Witt. 4 Johns. Rep. 213. Munro vs. Alaire, 2 Caine's Rep. 329. Drage vs. Brand, 2 Wils. 377. Hardy vs. Bern. 5 T. R. 636. If issue is joined on the plea of nil debet, the defendant will thereby be let into any defence he has it in his power to prove. 1 Wheaton's Selw. N. P. 435; and Rawlins vs. Danvers, 5 Esp. Rep. 38.

Williams, (District Attorney of U. S.) and Gill, for the Appellee. 1. The agreement as to the pleadings was manifestly drawn by [**6]  the defendant's counsel below, and it cannot be supposed that it was not intended to give the same latitude to the plaintiff, that it accorded to the defendant. It is in substance a case stated, and ought so to be construed. 2. The pleadings are perfectly correct; and the verdict was given under the act of 1785, ch. 80, s. 13. Nil debet is not a good plea to a bond; whether demurred to or not. Roberts vs. Mariett, 2 Saund. 187 a, (note 2.) Bullis vs. Giddens, 8 Johns. Rep. 82. Smith vs. Jansen, Ibid 111. Nor is non infregit conventionem, nor non damnificatus. If such a plea is agreed to be received with leave, it dispenses with all further pleadings, except the similiter. The leave can only be so construed. No breaches can with propriety then be suggested, nor a special replication to a plea of nil debet be put in--Cutler vs. Southern, 1 Saund. 117, (note 1.) 1 Chitty's Plead. 478 So with the pleas of non infregit conventionem, and non damnificatus, 1 Saund. 117, (note 1.) Brent vs. Davis, 10 Wheat. 396. Corporation of Washington vs. Young, Ibid 406. Rawlins vs. Danvers, 5 Esp. Rep. 38. No case can be found in any book of pleadings, or elsewhere, that breaches were ever assigned after [**7]  a plea of nil debet had been put in with leave. Under such a plea there can be no oyer. 2 Harr. Ent. 549. To the other pleas there is oyer, which becomes a part of the declaration. Arch. Dig. 187. 3. Even if it fully appeared that the collector had not taken the oath, or made the declaration required, it is no defence in a suit against him or his sureties. It would prevent his sustaining a suit as plaintiff, but he cannot be permitted to set up his own disqualification; or to use his own delinquency and breach of duty to resist payment of what he has by virtue of his office become possessed of. So far as the rights of others are concerned, he is what he professed to be, a legally constituted officer. 16 Vin. Ab. tit. Officers & Offices, (G4,) 114. Harris vs. Jays, Cro. Eliz. 699. 5 Bac. Ab. tit. Offices & Officers, 190. Ipsley vs. Turks, 2 Mod. 193. Big. Dig. 441. The People vs. Collins, 7 Johns. Rep. 549. M'Instry vs. Tanner, 9 Johns Rep. 135. 4. It does not appear whether Keenan took the oath or made the declaration, or not. His not being a citizen of the U. S. is no proof that he did not take such oath. In the absence of all evidence the presumption is he did what his duty required [**8]  of him. At least where he is called upon, he is to answer for his delinquency. The levy court did their duty. If it is proved he acted as collector, his appointment need not be proved. Arch. Dig. 388. Aldersen vs. Clay, 1 Starkie's Rep. 405. Green vs. Jackson, Peake's N. P. 236. 1 Phill. Evid. 170. 5. The onus probandi as to this fact, although a negative, rests on the defendant. 1 Starkie's Evid. 377, 378. Borthwick vs. Carruthers, 1 T. R. 648; and Dickson vs. Evans, 6 T. R. 57.  

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

OPINIONBY:
MARTIN 

OPINION:

 [*343]  MARTIN, J. delivered the opinion of the Court. The defence in this case cannot be sustained. It would be contrary to every principle of law to allow a man to avail himself of his own wrong, and plead a breach of duty as an excuse for a gross fraud upon the public.
Keenan being regularly appointed collector under the act of 1794, ch. 53, having given bond, with security, for the faithful performance of his duty, and received from the levy court the necessary books to make his collection, will be presumed to have taken the oath prescribed by law, as a prerequisite to the performance [**9]  of his official duties. It cannot be for him to say, a suit on this bond shall be defeated by his own neglect or malfeasance.
The securities, in point of law, must be placed in the same predicament. They have engaged that Keenan shall faithfully discharge his duty as collector, part of that duty was to take the oath prescribed by law, to enable him to make his collection, and they cannot be allowed, (in this respect,) a defence that is denied to the principal.

 [*344]  The appellant has also relied on errors in the pleadings--that this is an action on a bond with a collateral condition, and no breaches are assigned. This is fatal, unless cured by the agreement filed by the parties. By a paper signed by the counsel on both sides, it was agreed, in the several actions depending on the same bond against the sureties in the county court, "that the defendants in these cases shall plead nil debet, and that on the trial of the issues on that plea they shall severally be entitled to make all such legal objections, and give all kinds of evidence, which they could be entitled to make or give by or under any mode or form of pleas or pleading which could be legally used."  [**10]  
Whether the court are bound by a strict grammatical construction of this agreement, or may be permitted to look into the circumstances that gave rise to it to ascertain its true character, is the only difficulty presented by it. It is certainly a very loose course of proceeding, and the court cannot but express their regret, that instead of regular pleadings in the case, they are required to act on a substitute not free from ambiguity, and upon which the counsel cannot agree. See the case of Orme vs. Lodge, 3 H. & J. 83.
The court are of opinion, that this agreement ought to receive a liberal construction, to carry into effect what appears to have been the intention of the parties, and not one to defeat the plaintiff, whatever might have been the merits of his case. It is considered an agreement to waive all errors in the pleadings, and that instead of proceeding in the regular course, by praying oyer of the bond, pleading performance and assigning breaches, that the plea of nil debet shall be received, and under that plea the cause should be tried, as if all the pleadings had been regular. In this view of it, it would not be injurious to either party; its [**11]  only effect would be to save trouble in pleading, and the merits of the case would come fairly before the jury.
If this was not intended to be its effect, it is difficult to conceive why the defendant did not avail himself of it in the court below. Both parties proceeded to the trial of the cause, under this state of the pleadings, and that affords strong evidence, that the agreement was considered as a waiver of errors.
JUDGMENT AFFIRMED.  

3 of 33 DOCUMENTS 

COALE vs. HARRINGTON.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

7 H. & J. 147; 1826 Md. LEXIS 26 

June, 1826, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court. Trover for three slaves named Julian, Alexander and Commodore. Plea, non cul. and issue.

1. The plaintiff, (now appellee) produced and offered to read in evidence, at the trial, an authenticated copy of a bill of sale, taken from the records of Queen Anne's county, executed by John Deford, of Queen Anne's county, to Thomas L. Deford, dated the 12th of May 1806, and recorded in the records of the said county on the same day, whereby the said John Deford, in consideration of the sum of $ 400, granted, bargained and sold, unto the said Thomas L. his executors, &c. all his personal estate of whatever kind or description. The bill of sale was thus acknowledged: "Maryland, Queen Anne's county, to wit. On this twelfth day of May 1806, personally appeared before me, the subscriber, one of the justices of the peace for the county aforesaid, and acknowledges the within writing to be his act and deed, according to the true intent and meaning thereof, and the act of assembly in such case made and provided. "    William B. Hackett."

He also produced, and offered to read in evidence, an authenticated copy of another bill of sale from Thomas L. Deford [**2]  to Mary Ann Deford, dated the 10th of April 1812, and recorded in the records of the county in which the grantor resided, the 20th of the same month, whereby Thomas L. Deford, in consideration of natural love and affection, &c. did give, grant and confirm, unto his granddaughter, Mary Ann Deford, daughter of his son John Deford, a negro woman called Henny, and her infant child called Julian. This bill of sale was duly acknowledged by Thomas L. Deford, on the 10th of April 1812. He also produced and read in evidence, with the consent of the defendant, (the appellant,) the depositions of Charles Copper and Samuel N. Copper, taken on the 7th of November 1823, before a justice of the peace, &c. Charles Copper deposed, "that John Deford owned a negro woman named Henny, which Deford told deponent he had sold, her and her child named Julian, with other property, to his father Thomas L. Deford. After this conversation, John Deford lived with deponent, and never had possession of said Henny, or her child, during Thomas L. Deford's life. Henny at this time had but one child named Julian. Deponent knows that the wife of the plaintiff is the daughter of John Deford, and the grand-daughter of Thomas [**3]  L. Deford, and her name was, before marriage, Mary Ann Deford. After Henny and her child became the property of Mary Ann Deford, Henny had two children, the eldest named Alick or Alexander, the other named Commodore. Alick was yellow, Commodore black. John Deford had possession of the children a short time before they came to Baltimore, and said he kept them for his daughter, to whom they had been given by her grandfather. John Deford was opposed to Mr. Harrington marrying his daughter, and said Harrington should not have the negroes if he could keep them from him. Harrington was married about three years last August or September. John Deford, being the father of Mrs. Harrington, acted as guardian for her, as deponent knows. Every body considered these negroes as the property of Mrs. Harrington, after Thomas L. Deford's death, and John Deford frequently boasted of his daughter's fortune in these negroes. Deponent saw Alick living with Harrington, but does not know that the other negroes were ever in his possession. Alick lived with Harrington some weeks--does not know that it was a month. Alick did not like to stay, and deponent believes he run away; but does not know it. John Deford [**4]  said, if Harrington would be quiet, his intention was to let him have one of the negroes." Samuel N. Copper deposed, "that he knows that Thomas L. Deford, being the owner of, and in possession of the negro woman Henny, and her child Julian, the subjects of controversy in this cause, executed a bill of sale of them to his granddaughter, Mary Ann Deford, the now wife of the plaintiff, about the year 1811 or 1812; that after such transfer Henny had two children, Alick and Commodore. Alick, or Alexander, was yellow, and Commodore black. John Deford denied being the owner of these negroes, and deponent paid the direct tax assessed on them to prevent their being sold--Mary Ann Deford, the owner, being then a minor, and living with her mother's connections. Deponent saw Alick for some time in Harrington's possession in the fall of 1820 or 1821. The children, except the girl, were off and on in the possession of Harrington after he married Miss Mary Ann Deford. They were married in August or September 1820. John Deford always said the property was his daughter's." The plaintiff further offered in evidence, by Abraham Hays, a competent witness, that he procured a letter to be written to the [**5]  plaintiff, whom he had never seen at that time, directed to the Eastern Shore, where witness understood said plaintiff resided, informing him that there was a negro woman of his in Baltimore. That some time after, a person came to Baltimore, calling himself Richard Harrington, and saying that he had come to Baltimore in consequence of a letter he had received from witness, in search of the negro woman mentioned in the letter; that witness then went with said Harrington, and succeeded in finding said woman, and Harrington soon after sold her to one Anderson. That witness afterwards went with Harrington to the defendant to demand the negro children, who are the subjects of this action, and who witness understood were the children of the said negro woman. And that on Harrington's making said demand of the defendant, the defendant refused to give them up to Harrington, saying he should not have them without legal process, for he would punish Harrington for selling the mother of said negro children to Georgia. The defendant did not deny that Harrington was the person he represented himself to be. That the witness then went with the person aforesaid, to John Glenn, Esquire, an attorney at [**6]  law in Baltimore. And it was admitted that Glenn, at the instance and request of said person calling himself Harrington, instituted the present suit in the name of said Harrington. The defendant then proved that John Deford, claiming to be the owner of the negroes named in the declaration, brought them with him in the steam boat to Baltimore, a few days before this action was brought; and offered evidence to prove, that the said Deford applied to the defendant, and requested him to take possession of the said negroes, alleging that they were his, and that the plaintiff was attempting to get possession of them for the purpose of selling them; and that the defendant took possession of them accordingly. He further offered evidence to prove, that Henny, the mother of the negroes in question, about the year 1812, and for some years after, lived in Centreville, and hired herself about, in different places, as a free woman. That some persons threatened to enforce the law against masters who suffered their slaves to go at large as free. That John Deford reclaimed Henny, and he, or his son for him, hired her to Mr. Champlin, in Centreville. He further offered evidence to prove, that Henny was [**7]  always considered, in the neighborhood where John Deford lived, as the property of said Deford. That this was the general reputation in the neighborhood. That Henny was always called Deford's Henny--the said Thomas L. Deford being then dead. He further offered evidence to prove, that neither Henny, nor her children, were ever in the possession of the plaintiff until after 1820, when the defendant got possession of Henny, and sold her to a Georgia negro trader. That John Deford repeatedly declared that Henny, and her children, were his; that he bought them of a Mr. Wilmer, after the date of his said bill of sale of 1806, to Thomas L. Deford, his father. The defendant then offered in evidence a deed of manumission, executed by John Deford, for the three negro children mentioned in the declaration, and dated the 18th of September 1821, whereby the said Deford, stating himself to be of the city of Baltimore, manumitted and set free his negro girl Julian, aged about ten years, his negro boy Alexander, aged about eight years, and his negro boy Philip Commodore, aged about four years, and giving to them immediate freedom. The deed was acknowledged by him on the same day before the defendant,  [**8]  being a justice of the peace of Baltimore county, and recorded the same day among the records of that county. It was admitted that the defendant, at the time he took possession of the negroes, was a justice of the peace for Baltimore county, and that he put one of them into the possession of a Mr. Tyson, another into the possession of an uncle of the child, and the third into the possession of one Cowman; and that neither the defendant, nor any of the said persons to whom he delivered the said three negroes, have ever claimed any right or title to them, but have always, since the date of the said deed of manumission, declared them to be free. The defendant then prayed the court to instruct the jury, that the aforesaid copy of the bill of sale from John Deford to Thomas L. Deford, was not a legal and valid bill of sale for the purpose of conveying a title to negro Henny, or her children, from the said grantor to the grantee. Which instruction the Court, [Archer, Ch. J.] refused to give. The defendant excepted.

2. The defendant further prayed the court to instruct the jury, that if they should believe from the evidence, that Thomas L. Deford, at the time he executed the said bill [**9]  of sale to Mary Ann Deford, his granddaughter, did not retain the use and possession of the said negro Henny, and her children, mentioned in the said bill of sale to said Mary Ann Deford, then the copy of the said bill of sale, offered in evidence to the jury, was not legal evidence, and did not prove that the title to the said negroes passed from the said Thomas L. Deford to the said Mary Ann Deford. This instruction the court also refused to give. The defendant excepted.

3. The defendant further prayed the court to instruct the jury, that if they should believe, that when the demand was made upon the defendant for the delivery of the negroes, for which this suit was instituted, the defendant assigned as a reason for the nondelivery that he did not know that the plaintiff was the owner, or that he refused to deliver them upon the ground that he did not know to whom they belonged, and that he therefore kept them until the right should be ascertained, then the demand and refusal stated in the preceding bill of exceptions, is no evidence of conversion, unless the defendant has since sold, or otherwise converted the said negroes to his use; and that the jury must find a verdict for [**10]  the defendant. This direction the court gave. The plaintiff excepted.

4. The defendant further prayed the court to instruct the jury, that upon the whole of the evidence, the plaintiff was not entitled to recover. Which instruction 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:

A bill of sale of all the personal estate of the grantor passes whatever estate then belonged to him, and parol evidence is admissible to shew what that estate was.

Where it did not appear by the acknowledgment of a bill of sale before a justice of the peace, whether it was made by the grantor, or by whom it was made--Held, that such acknowledgment was defective, and that the bill of sale could not be recorded so as to make an authenticated copy of it evidence.

An authenticated copy of an instrument, improperly admitted to record, or not required to be recorded, is not competent evidence.

The act of 1763, ch. 13, requiring deeds of gift of slaves to be recorded only where the donors retain possession, a copy of such a deed, the original of which had been recorded, where the possession passed out of the donor at its execution, would not be evidence.

It is no error in an inferior court to refuse to give an opinion on an abstract proposition.

In an action of Trover, for slaves, in which the plaintiff claimed title under a bill of sale from F, the former owner, and the defence was, that F, had afterwards manumitted them--Held, that the declarations of F, made between the date of the bill of sale, and the deed of manumission, that he had sold the slaves to the person under whom the plaintiff claimed, was competent evidence for the plaintiff.

Where the appellate court differ with the inferior court upon one of the defendant's bills of exceptions, and agree with them upon the rest, they will still affirm the judgment, if they think the merits of the case are against the defendant, and that there is proof properly received to enable the plaintiff to sustain his action.  

COUNSEL:
Raymond, for the Appellant, contended, 1. That the bill of sale from John Deford to Thomas L. Deford, a copy of which was given in evidence, was a void instrument, and conveyed no title. It was general for all his personal estate, of whatever kind or description. To show, therefore, what property passed, parol evidence must be gone into, and such evidence was not admissible, because it varied the written contract. Wain vs. Warlters, 5 East, 10. Batturs vs. Sellers & Patterson, 6 Harr. & Johns. 249.

2. That it was not duly acknowledged by John Deford, and therefore that a copy was improperly admitted in evidence. That it could not be presumed, it not being so stated, that John Deford acknowledged it, and unless he did, it was not a valid instrument.

3. That the parol evidence offered by the [**11]  plaintiff below in explanation of the bill of sale, to show what negroes passed under it, was illegal, and ought not, therefore, to have been received by the court. The hearsay evidence of John Deford, who was not proved to be dead, though whether alive or dead would make no difference, was admitted by the court. If he was a competent witness he ought to have been produced at the trial, or his testimony legally taken.

4. That a copy of a bill of sale was not legal evidence, except where the grantor retains possession of the property sold. Dorsey vs. Gassaway, 2 Harr. & Johns. 402.

R. Johnson, for the Appellee. 1. It is every day's practice for a man to convey or devise his whole estate, either real or personal, and often both. And until now it was never seriously said that the grantee or devisee could not go into parol evidence to prove what was granted or devised to him.

2. The bill of sale in question comes under the act of 1729, ch. 8, s. 5, which requires that it should be acknowledged and recorded, where the property is retained by the grantor. It is not said what shall be the form of acknowledgment. There is no form prescribed. Here it appears that the bill of [**12]  sale was acknowledged, but it is not stated to have been done by John Deford--who but John Deford could acknowledge it? It is stated to be executed by him, and the presumption is irresistible that he did acknowledge it. It was not objected to when it was offered in evidence, and no advantage can be taken of it now. Carroll et al. Lessee vs. Norwood, 4 Harr. & M'Hen. 287. The prayer was a special one for the court's direction, which differs the case from Hall vs. Gittings's Lessee, 1 Harr. & Johns. 27

3. If the parol evidence was illegal, yet it was not excepted to. The defendant's prayer admitted the evidence, and the opinion of the court below was asked upon the whole of the evidence. In the second bill of exceptions, the appellant takes advantage of the testimony, and under the fourth bill of exceptions he attempts to impeach it. The declarations of John Deford were legal evidence, both parties claiming under him. It is too late to except now to evidence, which was admitted to go to the jury.

4. In Dorsey vs. Gassaway, 2 Harr. & Johns. 402, the opinion of the general court was not excepted to, and no decision on that point was had in this court. The question, therefore,  [**13]  is open for this court. It was for the defendant below to prove that possession of the property was delivered to Thomas L. Deford, and then to call upon the court to say that a copy of the bill of sale was not evidence.  

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

OPINIONBY:
BUCHANAN 

OPINION:

 [*154]  BUCHANAN, Ch. J. delivered the opinion of the court. This is an action of trover, by the appellee, who was plaintiff below, for three negroes, which he claims in right of his wife, and comes up on three bills of exceptions taken at the trial by the appellant; on the first of which three objections are raised to the opinion of the court below.
First. That the bill of sale from John Deford to Thomas L. Deford, was void for uncertainty.
Secondly. That it could not be explained by parol evidence; and
Thirdly. That it was not duly acknowledged, and therefore that the copy was not competent evidence.
The first and second objections there is some difficulty in understanding. The bill of sale is of "all the vendor's personal estate, of whatever kind or description." Now, what uncertainty there is in this, is not easily [**14]  perceived; the negroes in question are not indeed named in the bill of sale; but surely if they constituted a part of the personal estate of the vendor, they were embraced by a grant of the whole, unless it can be supposed, that a grant of the whole may not include a part. And if the bill of sale was in itself good and effectual to pass property of that description, the only matter of inquiry was, whether the negroes in question did in fact constitute a part of the personal estate of the vendor? But here the second objection is started, that the evidence, offered to show that they were a part of the personal estate of John Deford, was improperly admitted, on the ground that parol evidence cannot be received to explain a written contract.
It is a general rule of law, that parol evidence cannot be admitted to contradict, add to, or vary the terms of a written instrument. But that rule has no kind of application to this case; the parol evidence offered and received, was not to contradict, add to, or vary the terms of the bill of sale; it was not 

 [*155]  to show, that a part passed by a grant of the whole, or to explain what was meant by the words "all my personal estate of [**15]  whatever kind or description," but only to identify the negroes, and to show that they did constitute a part of the personal estate of John Deford, at the time of making the bill of sale, and was for that purpose properly admitted.
The third objection, that the bill of sale was not duly acknowledged, and the copy therefore improperly admitted in evidence, is of a different character.
The act of 1729, ch. 8, s. 5, requiring sales, &c. of goods and chattels, in certain cases to be in writing, also requires that writing to be acknowledged and recorded. By the office copy, which was offered in evidence, of the bill of sale from John Deford to Thomas L. Deford, it does not appear that that paper ever was duly acknowledged; the endorsement on the back of it does indeed purport to be a certificate of acknowledgment before a justice of the peace, but by whom the acknowledgment was made is not stated. It was probably an acknowledgment by John Deford, the vendor, and his name omitted by negligence or accident; but to receive such an imperfect instrument as a due acknowledgment of a deed, might lead to a dangerous laxity in practice, and furnish a precedent of mischievous [**16]  tendency. It is not, therefore, as to this point, material to inquire, whether under the facts and circumstances of the case, the sale by John Deford to Thomas L. Deford, was by the act of 1729, ch. 8, required to be by writing acknowledged and recorded; if it was, the bill of sale, not being duly acknowledged, it was improperly admitted to record, and the office copy ought not to have been admitted in evidence; and if it was not required to be recorded, the office copy was equally incompetent testimony, the recording of a paper not required by law to be recorded, not having the effect to dispense with the production of the original, and to make a copy legal evidence.
The bill of exceptions is badly worded, but the prayer set out must be considered as an application to the court for the opinion, that the copy offered in evidence of the bill of sale, was not evidence of a transfer of title to the negroes from John Deford to Thomas L. Deford, which opinion the court ought to have given.

 [*156]  The only question raised upon the second bill of exceptions is, whether in the case of a gift of negroes, where the donor does not retain possession, an office copy of [**17]  a bill of sale is evidence of title in the donee?
By the act of 1763, ch. 13, a gift of negroes is only required to be by deed, acknowledged and recorded, where the donor retains possession; and that solemnity not being authorized or required by law, when the possession passes to the donee by delivery, at the time and in pursuance of the gift, an office copy, in such case, of a bill of sale, is not competent evidence to prove title in the donee.
But that question does not properly arise in this case; the proof is, that Thomas L. Deford was in possession of the negroes at the time of executing the bill of sale to Mary Ann Deford, his infant granddaughter, now the wife of the appellee; and there is not one word of evidence to show, that he parted with the possession at the time; on the contrary, the natural and almost necessary inference would be, considering the sex, age, and situation of the donee, that he did not. The application, therefore, to the court to direct the jury, that if they should believe from the evidence that Thomas L. Deford, at the time he executed the bill of sale to Mary Ann Deford, did not retain the use and possession of the negroes mentioned [**18]  in it, the office copy of the bill of sale, which was offered in evidence, was not legal and competent testimony, was upon an abstract proposition, not warranted by, nor founded upon, the evidence in the cause, and the court did right in rejecting the prayer.
The last bill of exceptions was taken to the refusal of the court to direct the jury, that upon the whole of the evidence the plaintiff below was not entitled to recover; in which refusal the court was clearly right. The proof on the part of the plaintiff below was shortly this; that the negro woman named Henny, and her daughter Julian, were formerly the property of John Deford; that he frequently acknowledged he had sold them to his father Thomas L. Deford, to whom the use and possession were transferred; and that Thomas L. Deford transferred them, by bill of sale, to his granddaughter Mary Ann Deford, the daughter of John Deford, now the wife of the plaintiff below; and that Alexander and Commodore are 

 [*157]  also the children of Henny, born after the execution of the bill of sale from Thomas L. Deford to Mary Ann. The defence was founded on a deed of manumission of the [**19]  negroes, for whom the suit was brought, executed by John Deford, since the marriage of his daughter. The proof, therefore, of his acknowledgments anterior to the deed of manumission, that he had sold Henny and Julian to his father Thomas L. Deford, and also that the whole of the negroes in question belonged to his daughter, to whom they had been given by his father, was properly admitted in evidence; and the court could not have given the direction prayed, without usurping the province of the jury, and deciding the question of right between the parties, contrary to the testimony in the cause.
Upon the whole, we concur in opinion with the court below, on the second and last bills of exceptions, but dissent from the opinion expressed in the first exception. That dissent, however, furnishes no ground for a reversal of the judgment; the merits of the case are clearly against the appellant; and if the copy, which was offered in evidence, of the bill of sale from John Deford to Thomas L. Deford had been rejected, there was proof enough without it to sustain the action.
JUDGMENT AFFIRMED.  

4 of 33 DOCUMENTS 

BOYLE vs. ROBINSON, Bail of COULTER & FISHER.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

7 H. & J. 200; 1826 Md. LEXIS 29 

June, 1826, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court. In this case a writ of scire facias issued on the 12th of February 1822, reciting, that in Baltimore county court, on the third Monday of September 1819, Eve Robinson, (the appellee,) appeared personally in that court and became pledge and bail, in the usual form, for John Coulter and John Fisher, in an action on the case brought by Francis Boyle, (the appellant,) against the said Coulter and Fisher, and a certain Samuel Hill. That on the third Monday of September 1820, Boyle recovered judgment against Coulter and Fisher, for certain damages and costs, which damages and costs they had not, nor had the said Hill paid, nor had Coulter rendered his body to the public prison of Baltimore county in execution of the said judgment. The sheriff was therefore commanded to give notice to Eve Robinson, that she be and appear, &c. At the return day the sheriff returned the writ, "made known," &c. On this return the appellee appeared in court by her attorney, and moved the court, that the scire facias might be quashed for in sufficiency; for that she, as special bail, was not liable to the judgment sought for by said writ; and she filed in court an affidavit,  [**2]  made on the 18th of February 1822, by the attorney of Fisher, one of the original defendants, stating that the sheriff made return of the writ in the original action, "Cepi, Coulter & Fisher--N. E. Hill." That Fisher entered into a bail bond to the sheriff, with Eve Robinson, (the appellee,) as his security; and the Coulter also gave bond to the sheriff, with one Scott as his security. That Eve Robinson came into court, with the deponent, for the purpose of becoming special bail for Fisher; and the deponent directed the clerk of the court to enter her as bail for Fisher, which was done; but the clerk made the entry general on the docket, by which it would appear that she was special bail for both defendants. The county court sustained the motion, and quashed the writ of scire facias. The plaintiff appealed to this court.  

DISPOSITION:
JUDGMENT REVERSED. PROCEDENDO AWARDED.  

HEADNOTES:

A scire facias was issued against R, as special bail of C & F, reciting, in the usual way, the recognizance of bail, and the judgment against C & F, &c. R appeared to the writ, and moved to quash it, upon the ground, supported by affidavit, that she had only intended to become bail for F, and that the clerk of the court had by mistake entered her as bail for both C & F--Held, that as the writ recited the recognizance of bail, the proceedings to judgment against the principal, &c. properly, as they appeared by the record, it could not be quashed for insufficiency.

The court below having quashed the writ, the judgment was reversed, and on motion, a procedendo awarded.

If the bail was relievable on motion, ought it not to have been made for rectifying the original entry, in which the alleged mistake in taking the bail occurred? Quere.  

COUNSEL:
Gill and R. Johnson, for the Appellant, contended, 1. That Baltimore county court had no authority to quash the writ of scire facias. 2. That the writ, and return thereof, were regular. 3. That there was no evidence showing that the appellee did not become the special bail of Coulter and Fisher. 4. That the record entry [**3]  of the appellee as bail could not be contradicted, except by a sufficient plea. 5. That Baltimore county court in 1822 had no authority to alter the record of the original action of 1819, so as to change the record obligation of the special bail.

Mayer, for the Appellee, cited Holland & Franklin's case, 2 Leon. 184, 185. 1 Vent. 362; and 1 Tidd's Pr. 660.  

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

OPINIONBY:
EARLE 

OPINION:

 [*201]  EARLE, J. delivered the opinion of the Court. This is the case of a scire facias against special bail, which was quashed, on motion, by the court below, for insufficiency, with costs to the defendant. An affidavit, filed in support of the motion, states, that a mistake had been committed by the clerk in taking bail to the action--in taking Eve Robinson bail for Coulter and Fisher, whereas she was bail for Fisher only; and this, it is presumed, induced the court to set aside the scire facias, which appears to have been issued to make the bail responsible for Coulter.
The writ recites the recognizance of bail, the proceedings to judgment against the principal, and all other facts and [**4]  circumstances material to the case; and the return thereof being in all respects regular, the court cannot conceive how it could be quashed for insufficiency. That process cannot want sufficiency which conforms to the record, which is the foundation 

 [*202]  of it. If Eve Robinson appears on the record to have been the bail of Coulter, the writ is not to be deemed defective and erroneous, for stating her to be so.
It appears to the court, that the party's remedy has been mistaken in this case. If relievable on motion, it should have been made for rectifying the original entry in which the alleged mistake in taking the bail occurred; but whether it could have availed her or not, it is not for us at this time to decide. The subject is not regularly before us, and it has not therefore particularly engaged our attention. It is, however, certain, that as long as the record remains unaltered, the scire facias must be in conformity with it, and for being so, it cannot be pronounced insufficient.
JUDGMENT REVERSED.
R. Johnson moved for a writ of procedendo, or special mandate, to the court below, directing them to proceed in the case.
PROCEDENDO AWARDED.  

5 of 33 DOCUMENTS 

ROGERS, et al. LESSEE, vs. MOORE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

7 H. & J. 141; 1826 Md. LEXIS 25 

June, 1826, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court. Ejectment for a tract of land called Orange. Defence was taken on warrant, and plots were returned, by which it appeared that the defendant took defence for Carter's Delight. Plea, non cul. and issue.

At the trial the plaintiff, (the appellant,) read in evidence the patent of Orange, granted the 31st of October 1751, to Charles Carroll, of Annapolis, and others, one of the courses of which is described as bounding on Copus's Harbour, and running thence reversely N. W. by N. 40 perches, until it intersects the given line of Mounteney's Neck, then reversing the given line, &c. The plaintiff then deduced a title in fee simple in said land, from the patentees, by sundry mense conveyances, wills, and descents to the several persons, who on the 26th of January 1816, constituted and were called The Baltimore Company. He also read in evidence an act of the assembly of this state, passed the 26th of January 1816, entitled, "An act for the relief of The Baltimore Company," (1815, ch. 147,) vesting in the lessors of the plaintiff all the lands which belonged to that Company, and had been sold by them, but not conveyed, and all lands that then remained [**2]  unsold and undivided; in trust, &c. He also gave in evidence the plots and explanations in the cause, and proved that Orange was truly located by him on said plots, and that the part thereof laid down on said plots as his claim and pretensions, remained undivided and unsold by the Baltimore Company on the 16th of January 1816, and included the land for which the defendant took defence. The defendant then gave in evidence the patent of a tract called Carter's Delight, granted the 10th of December 1717, to John Carter, "beginning at a bounded red oak standing nineteen perches to the southward of the main road, and at the end of the first line of a tract of land called Mountainess, and running from the said tree north sixty perches, then," &c. containing 100 acres. And to prove that Carter's Delight was truly located by him on the plots, as his defence, beginning at or near to the place designated by the letter red A, on the plots, he read in evidence the patent of a tract of land called Fell's Prospect, granted Edward Fell the 20th of May 1761, being a resurvey on several older tracts. And also gave in evidence, to support his said location, certain deeds executed by The Baltimore Company,  [**3]  for whose use this action was brought, of lots No. 40, 41, 78 & 79, being parts of Orange, the younger, to the different purchasers of the same at public auction in 1792. And for the same purpose gave in evidence a deed from Thomas Sligh to John Bond, for 10 1/8 acres of land, being part of a tract called Mounteney's Neck; and proved that the locust post, mentioned in the said deed, stood at the place designated on the plots by a small black circle, near to red A. And he also gave in evidence, by consent of the plaintiff, the petition, commission and depositions, under a land commission, taken out by William Carter on the 4th of March 1735; and the petition, commission and depositions, under a land commission taken out by William Fell, in December 1742; and also gave in evidence, with the consent of the plaintiff, subject to all just exceptions to the competency and relevancy of the matters therein contained, the depositions of Adam Clackner, James Baker, E. Smith, John Murray, James Baker, Pamelia Moore, Hugh Stewart, John Mycroft, John H. Barney, William Evans and Adam Clackner, all taken in this cause. The plaintiff then, to prove that Carter's Delight was correctly located by him [**4]  on the plots beginning at the black letter A, and that the defendant's location of that tract could not be sustained, read in evidence the certificate of Mounteney's Neck, surveyed for Alexander Mounteney on the 31st of March 1662; and also the patent of the said land, granted to the said Mounteney on the 30th of June 1663; and proved that Mounteney's Neck was truly located by him on the plots, beginning at black B, and terminating its first line at black A. And also gave in evidence, for the purpose aforesaid, the warrant of survey granted to John Carter on the 29th of July 1714, on which the survey of Carter's Delight was made; and also, the certificate of survey of the said tract made and returned under the said warrant, dated the 11th of August 1714, and the certificate returned on the 27th of April 1737, for William Fell, of Mounteney's Neck, as escheat, and the patent thereon granted to said Fell, on the 12th of July 1737. He also gave in evidence, for the same purpose, a deed from William Carter to William Fell, for Carter's Delight, dated the 28th of February 1740, and the depositions of William Bond and of James Baker, dated in August 1824, and the petition of William Carter,  [**5]  above named, of the 4th of March 1735, for a commission on Carter's Delight aforesaid. And also gave in evidence, that the white oak tree called for in the original certificate and patent of Mounteney's Neck, as the second boundary of that tract, and the red oak tree called for in the escheat certificate and patent of Mounteney's Neck, as the second boundary of the said escheat land, and the red oak called for in the certificate and patent of Carter's Delight as its beginning, have all long since disappeared, and been wholly lost. The plaintiff then proved by Jehu Boulden and Ephraim Smith, witnesses in the cause, that the beginning and termination of the first line of Mounteney's Neck was as the plaintiff located the same on the plots; and read in evidence the certificate and patent of the tract of land called Copus's Harbour, or Corpus Harbour, and the certificate and patent of Carter's Delight; also the aforesaid deed from William Carter to William Fell, and the aforesaid deed from Sligh to Bond, together with the plots in the cause, to prove that Mounteney's Neck was called sometimes by that name, at other times by the name or description of a parcel of land laid out for Alexander [**6]  Mounteney, at other times Mountainess, and also as land originally granted to Alexander Mounteney, and to prove that the land, so differently called, was one and the same tract of land. He then proved, that Edward Fell, patentee of Fell's Prospect, was the son and heir at law of William Fell, mentioned in the escheat certificate and patent of Mounteney's Neck aforesaid, and in the said deed from William Carter to William Fell. The defendant then prayed the court to direct the jury, that if the jury found from the evidence that the red oak called for in the patent of Carter's Delight, as the beginning of the said tract of land, stood at the point designated on the plots as red A, then Carter's Delight must be located from that point, according to the courses, distances and calls, contained in the grant, with such allowance for variation of the compass as the jury, upon the evidence, might think right to allow, and that the jury were not bound to begin the said tract at the end of the first line of Mounteney's Neck. The plaintiff objected to the directions so prayed by the defendant, and to the relevancy of the testimony so given by him, and prayed the court for the following instructions [**7]  to the jury: First. That there is no evidence in this cause of the existence at any time of a red oak at or near to either of the places represented by the red letters A or B, on the plots. Second. That as the certificate and patent of Mounteney's Neck, called for a white oak at the end of its first line, it follows that the call in Carter's Delight to begin at a red oak standing at the end of that line, where no red oak could have stood, is a mistake so far as relates to the tree, which must be corrected by rejecting that part of the call. Third. That as the certificate and patent of Carter's Delight call for a red oak at the end of the first line of Mounteney's Neck, no evidence can be received to show the existence of such a beginning tree at the place designated by the red letters A or B, on the plot, at the distance of two hundred and sixty perches from the end of that line. Fourth. That the true location of Carter's Delight is to begin its first line at the end of the first line of Mounteney's Neck, wherever the jury may find it to be, and to run course and distance for all its subsequent lines, with such allowance for variation as they may find to be correct. But the Court,  [**8]  [Archer, Ch. J.] admitted the evidence so offered by the defendant, and gave the directions prayed by him, and refused to give those prayed by the plaintiff. The plaintiff excepted; and the verdict and judgment being against him, he appealed to this court.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

The beginning of a tract of land called C, was described in the patent to be "at a bounded red oak, standing 19 perches to the S. of the main road, and at the end of the first line of a tract of land called M"--Held, that the call to begin the tract C, at the end of the first line of the tract M, was not an imperative one; and that the jury were not bound to find the tree called for to be at the end of that line, but might find it to be elsewhere, according to the proof.  

COUNSEL:
Magruder, for the Appellant, referred to Helms's Lessee vs. Howard, 2 Harr. & M'Hen. 84, per Harrison Ch. J. & Carroll, et al. Lessee vs. Norwood, 5 Harr. & Johns. 163.

Taney and Rogers, for the Appellee, cited Hammond vs. Ridgely's Lessee, 5 Harr. & Johns. 245; and Pennington vs. Bordley's Lessee, 4 Harr. & Johns. 450.  

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

OPINIONBY:
STEPHEN 

OPINION:

 [*145]  STEPHEN, J. delivered the opinion of the court. The sole question in this case is as to the beginning of the tract of land called Carter's Delight, which is stated in the patent to begin "at a bounded red oak, standing nineteen perches to the south of the main road, and at the end of the first line of a tract of 

 [*146]  land called Mountainess," which tract is sometimes called Mounteney's Neck. The appellant contends that the call is an imperative one, and [**9]  that Carter's Delight must begin at the end of that line, and that the jury are not at liberty to find from the evidence, the true beginning of that tract at any other place, although they should find the tree called for not to stand at the end of the first line of the tract of land called Mountainess, as expressed in the patent. The question here presented for the consideration of the court is not now open for discussion, but has long since been put to rest by several solemn adjudications of this tribunal. In the case of Carroll, et al. Lessee vs. Norwood, 5 H. & J. 155, after affirming the right and jurisdiction of the court to decide on the construction of grants and deeds, the court go on and declare it to be the exclusive right and province of the jury to ascertain and fix calls according to the evidence legally admissible for that purpose. So in the case of Rench vs. Beltzhoover, 3 H. & J. 469, the court express themselves in the following terms: "The court are of opinion, that it exclusively belongs to the power and jurisdiction of the court to determine on the true construction and operation of grants, and whether a call in a certificate [**10]  of survey is to be gratified or not, and in what manner; and that it exclusively appertains to the province of the jury to find facts, and ascertain the true place or point called for, according to evidence legally admissible by the court." There are other decisions of this court establishing the same principles, particularly the case of Pennington vs. Bordley, et al. Lessee, 4 H. & J. 450 So that the relative power and jurisdiction of the court and the jury upon this subject may now be considered as solemnly settled.
The court are therefore of opinion, that the jury were not bound to find the tree called for at the end of the first line of the tract of land called Mountainess.
JUDGMENT AFFIRMED.  

6 of 33 DOCUMENTS 

OWINGS & PIET v. LOW.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

7 H. & J. 124; 1826 Md. LEXIS 23 

June, 1826, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court. This was an action of assumpsit for goods sold and delivered by the plaintiffs, (now appellants,) as co-partners, to the defendant, (the appellee.) The declaration contained two counts--Indebitatus assumpsit, and quantum meruit. The defendant pleaded non assumpsit, and filed an account in bar, charging the plaintiffs with three-fourths of a house built by the defendant for them, amounting to $ 4,141 11, and three years ground rent for the ground on which the house stands; together with interest, the whole amounting to $ 5,346 47.

1. The plaintiffs at the trial proved the delivery of the goods, wares and merchandise, by them to the defendant, for which the suit was brought. The defendant then offered to prove by a certain John Walsh, that the plaintiffs, together with the defendant, and the witness and others, associated together to build several houses on Franklin-street, in the city of Baltimore; that the plaintiffs had agreed to furnish the hardware necessary for the houses, and for payment thereof was to have an interest of three-fourths in one of them when finished. The plaintiffs objected to Walsh as a witness, on the ground of his being [**2]  interested; which objection the Court, [Dorsey, Ch. J. and Hanson, A. J.] overruled. The plaintiffs excepted; and while drawing the exception, and before it was signed and sealed, the plaintiffs' counsel further asked said witness, whether the houses had not much depreciated in value. To which he replied in the affirmative.

2. The defendant further offered in evidence, by a certain Charles L. Boehme, the following agreement between the said Boehme and the defendant, and Walsh, the witness aforesaid, signed by Boehme, dated the 18th of October 1818: "Whereas I, Charles L. Boehme, of the city of Baltimore, have and did, on or about the thirteenth day of April last, agree with Henderson P. Low, to deliver to him and to John Walsh, all the bricks that might be required by them for the purpose of building five warehouses and two dwelling-houses on Franklin-street, and one dwelling on North-street, at the rate of eight dollars p. thousand for good merchantable common brick, customary price for front brick, and what might be customary for extra hauling, in addition to what bricks may be wanting to complete the said houses, which I agree to deliver without delay. I hereby further agree [**3]  to deliver to the said Henderson P. Low and John Walsh, or to their executors, administrators or assigns, three hundred thousand good merchantable bricks, in any part of the city that they may require the same, or any part thereof, to be delivered, at the above rate of eight dollars p. thousand, and customary prices for extra hauling; one half of the said three hundred thousand to be delivered between this time and the first of January, if required, and the residue by the first of June next, if required. In payment of the above bricks, I hereby agree to take one of the dwelling-houses on Franklin-street at the actual cost thereof, subject to annual rent of ten dollars pr. front foot, the rent commencing on the first of October inst. and for which a lease from Messrs. Peter & George Hoffman, the proprietors of the ground, is to be given; the residue is to be paid as follows: One thousand dollars cash; a note at 60 days for one thousand dollars; and a note at sixty days for five hundred dollars. Should there be a balance on either side, the same to be paid when ascertained." On the back of which was the following receipt, signed by the said Boehme. "Baltimore, October 8, 1818. Rec'd.  [**4]  of Henderson P. Low and John Walsh five hundred dollars in cash, which, with five hundred dollars rec'd. on the 3d inst. is in full of the cash payment mentioned within. At the same time rec'd. of them, Walsh & M'Quinn's notes for fifteen hundred dollars, one dated the 6th inst. at 60 days, for one thousand dollars, and one dated the 10th inst. for five hundred dollars, being the notes mentioned within."

The plaintiffs then offered to prove by Boehme, that at the time of signing the aforesaid agreement, Walsh and the defendant agreed to have the houses, mentioned in the said written agreement, finished by the first day of December 1818. To which evidence the defendant objected, and the court allowed the objection. The plaintiffs excepted.

3. The defendant then proved by Walsh that he, the witness, and the defendant, had agreed to build several houses on Franklin-street, and two houses on North-street, in the city of Baltimore, on lots which they had agreed to lease of George and Peter Hoffman; that the defendant applied to the plaintiffs to take an interest in one of the houses to be erected on Franklin-street; and the plaintiffs thereupon agreed with the defendant to furnish [**5]  all the hardware that might be wanted for said buildings about to be erected on Franklin-street and North street, and to take three-fourths of one of the houses to be built on Franklin-street, in payment for the hardware which they were to deliver as aforesaid; that five or six months afterwards, and after some of the hardware had been furnished by the plaintiffs, they, the said Walsh and the defendant, declined building the two houses on North-street, and Walsh, with the assent of the defendant, informed Piet, one of the plaintiffs, that they had so declined, and that this would make no difference to the plaintiffs, as the defendant and Walsh would take from them as much hardware as they would have done if they had not declined building the two houses on North-street; that Piet made no objection; and that the plaintiffs afterwards continued to furnish hardware, which was used on the buildings on Franklin-street, and that the said buildings were finished in the month of May 1819, and that the present action was brought to recover the hardware which had been delivered to the defendant under the contract and in the manner before stated. The witness also proved, that the houses on Franklin-street [**6]  were never divided by any particular act, nor was any house ever tendered to the plaintiffs, within his knowledge; but witness heard Piet, one of the plaintiffs say, that Owings, the other plaintiff, would take no part in the buildings. The defendant had the key of the houses, and the witness did not know that he had ever parted with it. The plaintiff then moved the court to direct the jury, that if they believe this testimony, the plaintiffs were entitled to recover; which direction the court refused to give. The plaintiffs excepted; and the verdict and judgment being against them, they appealed to this court.  

DISPOSITION:
JUDGMENT REVERSED, AND PROCEDENDO AWARDED.  

HEADNOTES:

In an action of assumpsit to recover the value of a quantity of hardware, sold by P, the plaintiff, to D, the defendant--D, the defendant, offered to prove by W, that he the witness, and D and P, had with others, associated together to build several houses; that P was to furnish the necessary hardware, and was to be paid by having an interest in one of the houses when finished; and that the hardware in dispute was delivered by P to D, under this agreement.-Held, (on the objection of P,) that W was not a competent witness, because he had an interest in defeating the action; for in case P recovered, he would not only be liable to contribute a proportion of the verdict, but would also be responsible for a proportion of the costs.

Where the court overrule an objection to the competency of a witness, and the party making it is preparing his exception, he does not waive the benefit of it by examining the witness as to the points in issue, before the exception is signed and sealed.

D having given in evidence a written agreement between B, and himself and the said W, by which B agreed to deliver what brick might be necessary to build the said houses, and in part payment was to take one of the houses, P offered to prove by B, that at the time this agreement was made, W and D stipulated that the houses were to be finished by a particular time.-Held, that such evidence could not be given by P, the plaintiff, because not being a party to the agreement, he was not bound by it, and could not, therefore, avail himself of it in his favour.  

COUNSEL:
Mitchell and R. Johnson, for the Appellants. 1. John Walsh was not a competent witness, and ought not to have been admitted.

2. The evidence offered in the second bill of exceptions, to prove the time limited for the completion of the houses, should have been received.

3. The agreement, stated in the third bill of exceptions, resting only on parol evidence, was within the statute of frauds.

4. If it was not within the statute, still it was not binding on the plaintiffs, as the defendant failed to perform his part [**7]  of it; and the court should, therefore, have directed the jury, that the plaintiffs were entitled to recover.

5. The account in bar ought not to have been admitted.

1. On the first point, they cited Martin vs. Henrickson, 2 Ld. Raym. 1007. French vs. Backhouse, 5 Burr. 2727. Riddle vs. Moss, 7 Cranch, 206. 1 Phill. Evid. 48, 73. Young vs. Bairner, 1 Esp. Rep. 103; and Birt vs. Hood, Ibid 20.

2. On the second point--Watkins vs. Hodges & Lansdale, 6 Harr & Johns. 38. Ensign vs. Webster, 1 Johns. Cas. 145. Keating vs. Price, Ibid 22. Pleasants vs. Pemberton, 2 Dall. Rep. 196. Peake's Evid. 83. Morton vs. Wells, 1 Tyler's Rep. 382. The King vs. Inhabitants of Laindon, 8 T. R. 379, 382. 1 Phill. Evid. 443, 444, 426, 427, 428, (note a,) 429. Maryland Insurance Company vs. Ruden, 6 Cranch, 338. Overseers of the Poor, &c. vs. Overseers of the Poor, &c. 10 Johns. Rep. 229. 1 Bac. Ab. tit. Agreement; and 2 Phill. Evid. 45.

3. On the third point--1 Bac. Ab. tit. Agreement, (C,) 115. Botting vs. Martin, 1 Campb. 318. Hoby vs. Roebuck, 2 Serg. & Low. 57. Hawkins vs. Holmes, 1 P. Wms. 770. 1 Chitty's Plead. 142, 334, 342. 2 Phill. Evid. 63, 64, 65, 82, 83, (note a;) and O'Herliky [**8]  vs. Hedges, 1 Seh. & Lef. 123, 130.

Moale and Mayer, for the Appellee. 1. On the first and third bills of exceptions they cited 1 Phill. Evid. 43, 54. Ilderton vs. Atkinson, 7 T. R. 476. York vs. Blott, 5 Maule & Selw. 71. Peaceable vs. Watson, 4 Taunt. 17. Shuttleworth vs. Stephens, 1 Campb. 407. Hudson vs. Robinson, 4 Maule & Selw. 475. Birt vs. Kershaw, 2 East, 458. Ridley vs. Taylor, 13 East, 175. Alderman vs. Tirrell, 8 Johns. Rep. 418. Birt vs. Hood, 1 Esp. Rep. 20. 2 Com. Cont. 72, and Inman vs. Stamp, 2 Serg. & Low. 273.

2. On the second bill of exceptions, they cited Ham. Dig. 287, pl. 20, 24, 50, 67, 69, 71, 82. Rich vs. Jackson, 4 Bro. Ch. Rep. 514. Hare vs. Sherwood, 1 Ves. 243. Woollam vs. Hearn, 7 Ves. 211. Wesley vs. Thomas, 6 Harr. & Johns. 24, 25; and 2 Com. Cont. 18, 20, 56, 81, 84.

Curia adv. vult.  

JUDGES:
The cause was argued at the last June term before BUCHANAN, Ch. J. and EARLE, MARTIN, STEPHEN, and ARCHER, J. ARCHER, J., concurring.  

OPINIONBY:
STEPHEN 

OPINION:

 [*129]  STEPHEN, J. at this term, delivered the opinion of the court. This action was instituted for goods sold and delivered. The plaintiffs proved, by competent testimony, the delivery of the goods [**9]  as charged in their declaration, and there rested their case. The defendant, in his defence against the action, offered to prove by a certain John Walsh, that the plaintiffs, together with the defendant and the witness, and others, associated together to build several houses on Franklin-street in the city of Baltimore; that the plaintiffs had agreed to furnish the hardware necessary for said houses, and for payment thereof were to have an interest of three-fourths in one of said houses, when finished. The plaintiffs objected to the witness, as being incompetent upon the ground of interest, which objection the court overruled; and the question now to be decided is, whether the opinion of the court below was correct in admitting the testimony of said witness? The principle of law is well settled, that any interest, however small, which a witness has in the event of a cause, is sufficient to render him incompetent. and will exclude him from giving testimony in the case. In 1 Phillips on Evidence, 53, the law is laid down to be, that a person who loses or gains the smallest sum by the event of a suit, whatever may be his rank, fortune or character, is as incompetent to [**10]  give evidence, as one who may be interested to the amount of thousands. If then, John Walsh had any interest, however small, in the determination of the cause then before the court, he ought to have been rejected as incompetent. He was called to prove that the plaintiffs, the defendant, himself, and others, were jointly concerned in building certain houses on Franklin-street in the city of Baltimore; and that the articles for which suit was brought, were, by agreement, to be applied to the building of those houses; and that the plaintiffs contracted to take, as compensation for them, an interest in one of the houses. No man has a right to prove himself a partner with another against his consent, for, in 1 Phillips on Evidence, 73, (note c,) the rule is stated to be, that the admission of one defendant is not evidence to charge another defendant with the fact of being a partner with him; yet in this case he was called upon by the defendant to prove himself a partner with him; and the rule of law being, that every man may renounce 

 [*130]  a privilege instituted for his protection, so far as the defendant was concerned, his incompetency to prove that fact was removed [**11]  by a waiver of the objection on his part; but he was certainly not admissible to prove the plaintiffs likewise partners with himself and the defendant in the building of said houses. The witness was clearly interested in the event of the suit against the defendant; because the hardware, for which the action was brought, being used in building the houses on Franklin-street, in which he was jointly concerned, he was liable, not only to contribution in the event of a recovery by the plaintiffs, but he was likewise responsible for his proportion of the costs of that suit. In Riddle vs. Moss, 7 Cranch 206, it was decided, that an increase of liability by reason of costs, is sufficient to render a witness incompetent.
The judgment of Baltimore county court ought to be reversed on the first and third bills of exceptions; because the witness, who was permitted to give testimony to the jury, was incompetent, and ought to have been rejected. See also Starkie on Evidence, 783.
The opinion of the court, expressed in the second bill of exceptions, was correct, and is affirmed; because the agreement made between the witness, Boehme, and the defendant,  [**12]  the plaintiffs were not bound by, not being a party to the same; and therefore they should not be permitted to avail themselves of it in their favour.  

CONCURBY:
ARCHER 

CONCUR:

ARCHER, J. I concur with the court below in the opinions expressed by them in each of the bills of exceptions; and as I therefore dissent from the opinion of this court on the first and third bill of exceptions, I beg leave briefly to express my views on each question submitted to this court.
The question in the first bill of exceptions is as to the admissibility of John Walsh as a witness for the defendant, for the purpose of proving the existence of a limited partnership, (it was so considered in the argument,) between the plaintiffs, defendant, witness, and others.
Were the plaintiffs strangers, suing the defendant as one of a firm, the defendant would not be permitted to call one of his co-partners for the purpose of proving a partnership, inasmuch as the witness, being liable to a contribution for debt and costs 

 [*131]  to the defendant, has an interest in defeating the action. In such a case the verdict against the defendant would be evidence, not of the existence of the partnership, [**13]  but that being established, it would be evidence of the amount recovered against the defendant, in an action by such defendant against the witness for a contribution. Whether this principle of the law of evidence is applicable to the present case, and excludes this witness, is the question submitted to the court.
It is conceived that the principle of the rule can have no applicability to this case, for it cannot be perceived how, if there were a recovery against the defendant, he could, under the circumstances of this case, sue the witness for a contribution. In such an action, proof of partnership between the defendant and the witness, would be indispensable to a recovery; and if, as is the fact, it should turn out in evidence, that the recovery, upon which the action for contribution is grounded, was had by one partner's suing one of his co-partners, instead of going into equity to compel an account and adjustment, (the only manner in which he could rightfully have proceeded,) it would be impossible for the defendant in such action to succeed against the witness. If a partnership existed between the plaintiffs and defendant, the plaintiffs had no right to sue the defendant at law,  [**14]  and a recovery against him would be wrongful, for which he could seek redress in a court of equity, and where he could be made responsible to the plaintiffs for no greater sum than, as co-partner with the plaintiffs, he was liable according to the terms of the association, and their mutual dealings. But in such a case, could an action for contribution be maintained, it would be giving a sanction to such wrongful proceeding on the part of the plaintiffs, and would be equivalent to saying that one partner might be compelled to pay another co-partner a greater sum than was due him, without having any regard to their contract or partnership transactions. Be the event of this suit what it may, the situation of the witness remains unchanged. He can be responsible to neither the plaintiffs, nor the defendant, beyond the terms of the association. If the plaintiffs fail in their suit, the witness remains, as before, answerable in equity to them. If the plaintiffs succeed, and the defendant, by failing to seek redress in equity, is compelled to pay the sum recovered 

 [*132]  at law, the only thing which he would have a right to demand would be, that he should, in the distribution of the [**15]  funds of the association, be put in the place and stead of the plaintiffs, who could rightfully only have claimed an interest in one of the houses on Franklin-street, in payment for the hardware delivered; so that the interest of the witness, whether personal or relative, is precisely the same, let the issue of the suit at law be what it may. I therefore conceive he was properly admitted as a witness.
The reason for the introduction of the testimony by the plaintiffs, in the second bill of exceptions, it is difficult to apprehend, nor is it distinctly seen why it was considered necessary on the part of the defendant, to resist the testimony proposed in this bill of exceptions to be given. For from any thing which appears in evidence, this contract between the defendant, Walsh & Boehme, be its construction what it may, could have had no bearing on the contract attempted to be set up in this case by the defendant, or upon the one attempted to be established by the plaintiffs, without some other testimony connecting it, in some manner, with the contract in issue before the jury. But if the contract was properly in evidence in the cause, it was surely proper that it should [**16]  appear before the court with the same stipulations, and with the same character impressed upon it, and that the same interpretation should be given to it, although introduced in evidence, which it would have or receive were an action depending upon it by one of the contracting parties against the other. By its terms the contracting parties had fixed no definite time for the completion of the buildings on Franklin-street. It may therefore be considered that the defendant and Walsh, by a just construction of the agreement, had a reasonable time allowed them for that purpose. To permit a verbal agreement, entered into at the time of making the contract, to be set up, by which a specified time should be allowed for finishing the houses, would be to admit evidence to vary the contract.
This case may be assimilated to the case of a promissory note, where no time is fixed for payment; and where it has been decided, that evidence would be inadmissible to shew that it was not intended to be paid immediately. Evidence of an agreement 

 [*133]  to enlarge the time for the delivery of goods sold, has been admitted, on the ground that it was only a continuance of the original [**17]  contract; but in all these cases, the agreement for the substitution of other days, instead of those originally specified for its performance, were always made subsequent, not at the time of entering into the stipulation. I therefore concur with the court below on the second bill of exceptions.
From the testimony detailed in the third bill of exceptions, it appears that a special contract was entered into between the plaintiffs and the defendant, whereby the plaintiffs were to receive, in consideration of their delivery of a quantity of hardware, three-fourths of a dwelling-house to be erected on Franklin-street in the city of Baltimore. Some change in the determination of the defendant, as to the number of houses which he had calculated to build, was made and announced to one of the plaintiffs, who made no objection, and the plaintiffs afterwards continued to furnish more of the goods they had agreed to deliver, and this action, it is admitted, is brought to recover the hardware delivered under the contract. The same quantity of hardware was agreed to be taken as if no alteration had been made in the determination of the defendant. It appears, therefore, to be [**18]  an alteration in no wise affecting the plaintiffs, or touching the contract between the parties. The rule relative to a party's right to abandon the special agreement, and resort to the implied contract, is this, that if the special agreement has been put an end to by the defendant, or the performance of it on the part of the plaintiff prevented by some act of the defendant, there the plaintiff may recover under the common counts whatever may be due to him. But if the special agreement still continue in force and unrescinded, the plaintiff's remedy must be on the special contract, and he cannot abandon it, and recur to the implied contract. Now the special agreement has neither been put an end to, nor its performance prevented by the defendant. The plaintiffs surely cannot be permitted to recover, in this action, the value of the hardware delivered, and thereby waive their contract with the defendant. They agree to take, in satisfaction of their goods, part of a dwelling-house, and can only have their remedy for a specific performance of the contract, or by an action on the special contract, 

 [*134]  in which they should recover damages for the failure of the defendant to execute [**19]  it.
If this were an agreement within the statute of frauds, as seems to have been conceded in the argument, it was nevertheless one, the performance of which could have been enforced against the defendant, because the plaintiffs had furnished the hardware in pursuance of it, with which the defendant had erected various buildings. It has been performed on the part of the plaintiffs, and it would be impossible to restore them to their former situation; therefore, if it were allowable for the defendant to take advantage of the statute, it would enable him to perpetrate a gross fraud on the plaintiffs. Performance on the one side, under such circumstances, has always been considered as taking a case without the provisions of the statute. But if it were a case not excepted by judicial decisions from the operation of the statute of frauds, still it would have been incumbent on the plaintiffs to have satisfied the court, that the defendant refused to perform the contract, or that he had taken advantage of the statute, before they could be entitled to sue on the general counts. I concur with the court below in the third bill of exceptions, and think their judgment ought to be affirmed.  [**20]  
JUDGMENT REVERSED, AND PROCEDENDO AWARDED.  

7 of 33 DOCUMENTS 

THE CITY BANK OF BALTIMORE vs. BATEMAN.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

7 H. & J. 104; 1826 Md. LEXIS 21 

June, 1826, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Harford County Court. Assumpsit by the appellee against the appellants, brought in Baltimore county court, and removed to Harford county court. The declaration contained four counts--for money laid out, expended and paid--had and received--lent and advanced--and on an insimul computassent. Plea, non assumpsit, and issue.

1. The plaintiff at the trial proved that he was the proprietor of ten kegs and one bag of dollars, containing in all $ 11,000, which were brought to the banking house of the defendants, without and against the will and consent of the plaintiff. He further offered in evidence, by John S. Gittings, who was a clerk of the defendants, that Samuel Hollingsworth was the president of the said bank, and Robert Barry the cashier pro tempore, and both of them were stockholders; and that they, Hollingsworth and Barry, while acting as president and cashier as aforesaid, told the witness to pay away the said money of the plaintiff, in discharge of the debts of the bank; which he accordingly did; and that Hugh D. Evans, a director of the bank, brought into the bank another bag of dollars, which Hollingsworth told the witness was the money of the plaintiff, and [**2]  obtained in the same manner as the other, and directed him to pay it away, for the use of the bank, in the same manner as he had done the other, which he did. Subpoenas had issued, and had been served, by the plaintiff, on both Barry and Hollingsworth, but no further proceeding adopted to procure their attendance, although they were within the reach of the process of the court. To the admission of this evidence the defendants objected. But the Court, [Archer, Ch. J. and Hanson and Ward, A. J.] overruled the objection, and admitted the evidence to go to the jury. The defendants excepted.

2. The plaintiff then offered Charles Gwinn as a witness, it being admitted that he was, at the time of the transaction referred to, and still was, a stockholder in said bank; to whose competency, as a witness, the defendants objected, though the witness waived all objection on his part to be sworn in the cause. The court overruled the objection. The defendants excepted.

3. The plaintiff then offered in evidence, that several years before 1819, the City Bank of Baltimore caused a considerable number of notes, commonly called bank notes, to be issued for sums less than five dollars, and in [**3]  some cases for sums less than a dollar; and that these notes were sometimes signed by the cashier, sometimes by the teller, Bateman, and sometimes by other officers of the bank, and were paid away and received by the bank in their transactions, in the same manner as were notes of a larger description. That when, on the 26th of May 1819, the bank failed, the president and directors advertised, requesting all persons holding these smaller notes to bring them into the bank, and receive specie for them. That accordingly such notes, to a considerable amount, were brought in by the holders of them, and were taken up by the officers of the bank, by paying specie for them; and that the payment of Bateman's money, spoken of by John S. Gittings, was, among other things, to redeem these small notes, or as he called them, counter-tickets. The defendants then prayed the court to direct the jury, that if they believed the evidence so given, the plaintiff was not entitled to recover. Which direction the court refused to give. The defendants excepted; and the verdict and judgment being against them, they appealed to this court.  

DISPOSITION:
JUDGMENT REVERSED AND PROCEDENDO AWARDED.  

HEADNOTES:

In an action against a banking company, where the sum of money in dispute was proved by other evidence to have belonged to the plaintiff, it was held competent for him to give in evidence the directions of the president and cashier, to their inferior officers, in relation to the manner in which they were to apply such money in discharge of the debts of the bank, although the president and cashier were within reach of the court's process, as it was to be presumed they had authority to give such directions.

Although generally the admissions or declarations of third persons are inadmissible evidence; yet where the relation of principal and agent is established, the acts and declarations of the agent, within the scope of his authority, are as admissible evidence as the acts and declarations of the principal himself, but not so where they are made out of the limits of his authority; in the latter case the agent must be produced.

A declaration made by the president of the bank, to one of the inferior officers, that certain money, which had been brought into the bank by one of the directors, was the money of the plaintiff--Held not to be admissible evidence, because he had no authority, as president, to make such declaration, and because, although the corporate name of the bank was "The President," &c. and he is sued in that name, he is only so sued, and is only liable in his corporate capacity, and cannot be considered as a party on the record, so as to let his declarations in evidence against himself, but should be produced as a witness by the plaintiff, as he might be so produced, and compelled to testify, although he was also a stockholder, and his evidence might affect his interest as a stockholder.

Where the money of the plaintiff was used by the bank in paying notes of a denomination less than $ 5, called counter tickets, and which had been issued by the bank, signed, some by the cashier, some by the plaintiff, as teller, and some by other officers of the bank, on such notes being brought in for payment, under an advertisement of the bank calling them in for that purpose--Held, that the plaintiff might recover the amount in an action of assumpsit, without an enquiry into the authority by which such notes were issued.  

COUNSEL:
Taney and Glenn, for [**4]  the Appellants, stated, that the only point to be determined was, whether the declarations of a member of a corporation were evidence against the corporation, where they are made at a time when he is not engaged in making a contract on behalf of the corporation? They contended, that they were not evidence; and cited Bank of Columbia vs. Patterson, 7 Cranch, 299, 305. 1 Phill. Evid. 77. 2 Bac. Ab. tit. Corporations, (E 3,) 13. The Mayor, &c. of London vs. Long, 1 Campb. 25; and Taney vs. Kemp, 4 Harr. & Johns. 348.

Wirt, (Attorney General of U. S.) and R. Johnson, for the Appellee, cited 1 Phill. Evid. 50, 72. The King vs. Inhabitants of Hardwick, 11 East, 577. The King vs. Inhabitants of Terrington, 15 East, 471. The King vs. Inhabitants of Woburn, 10 East, 395; and 1 Liv. on Agency, 44, 48, 49, 286, 392 to 394.

Curia adv. vult.  

JUDGES:
The cause was argued at last June term, before BUCHANAN, Ch. J. and MARTIN and STEPHEN, J.  

OPINIONBY:
BUCHANAN 

OPINION:

 [*107]  At this term the opinion of the court was delivered by
BUCHANAN, Ch. J. This case comes up on three bills of exceptions, taken at the trial on the part of the appellants. The statement in the first bill of exceptions [**5]  is, that the appellee proved he was the proprietor of ten kegs and one bag of dollars, containing in all $ 11,000, which were taken to the banking house of the appellants without and against his will and consent; and that he offered to prove by John S. Gittings, a clerk of the appellants, that Samuel Hollingsworth was the president, and Robert Barry the cashier pro tempore, of the institution, and were both of them stockholders; and that while acting as president and cashier, they told him the witness, to pay away the said money of the appellee in discharge of the debts of the institution, which he did; and that Hugh D. Evans, a director, took into the bank another bag of dollars, which the said Hollingsworth told the witness was also the money of the appellee, obtained in the same manner as the other, and directed him to pay it away for the use of the institution, as he had done the other, which he accordingly did.
The admissibility of the testimony of this witness was objected to on the part of the appellants, but the objection was overruled by the court before which the cause was tried; and whether it was admissible or not in the whole, or in part, is now [**6]  submitted to this court for consideration.
To the admissibility of that part of the testimony of John S. Gittings, which relates to the ten kegs and one bag of dollars, that had before been proved to be the property of the appellee, there does not seem to be any well founded objection, as it cannot well be doubted, that a president and cashier of an institution, such as the City Bank of Baltimore, may legitimately direct an inferior clerk to pay out monies in the bank, in discharge of the debts due by the bank; and if they have authority to give such directions, there is no principle which goes to 

 [*108]  exclude evidence of such directions being given, in a case in which they are pertinent to the issue.
But whether the witness was competent to prove that Hollingsworth, the president, told him, that another bag of dollars, which was afterwards taken into the bank by one of the directors, was the property of the appellee, in order to charge the appellants with the amount in this suit, is a different question.
Admissions or declarations by third persons, are in general inadmissible; but the relation of principal and agent excludes the application of this rule; and [**7]  it is a general principle, that where an agency is sufficiently established, the acts and declarations of the agent, within the scope of his authority, are to be considered as the acts and declarations of the principal, of which evidence may be given, as if they had been actually done and made by the principal himself. But an agent cannot bind the principal beyond the scope of the authority delegated to him; and where he makes any declarations or representations of his own authority, such declarations or representations cannot be received in evidence to charge the principal, but the agent must himself be called to prove any thing he may know in relation to the subject of such declarations or representations.
As if a letter be written by an agent to his principal, informing him of what he has done, that being no part of the contract itself, made by him for the principal, but a representation only of what he has done, it is inadmissible in evidence against the principal, his authority being only to make the contract, and not to bind the principal by declarations or representations made afterwards, which form no part of the contract. 2 Starkie on Evid. 61. Langhorn vs. Allnutt, 4 Taunt. 511. [**8]  Kahl vs. Jansen, 4 Taunt. 565. Maesters vs. Abraham, 1 Esp. 375. Helyear vs. Hawke, 5 Esp. 74. Peto vs. Hague, 5 Esp. 134. The President, &c. of Hartford Bank vs. Hart, 3 Day 491, 495. Fairlie vs. Hastings, 10 Ves. 125.
Viewing Samuel Hollingsworth then, the president of the institution, as the agent of the corporation, any act done by him in pursuance of, and coextensive only with his authority, would bind the corporation; but declarations not making a part 

 [*109]  of the res gestae, and being representations only, of his own mere authority, of what was done, could not properly be received in evidence against the corporation. The information given by him to John S. Gittings, that a bag of dollars, which had been taken into the bank by one of the directors, was the money of the appellee, was of that character; it was no act of his as agent of that institution, binding upon his employers, but a mere representation made by him, in relation to the acts and rights of others; a declaration, (not within the scope of his authority, nor in any way connected with it,) that [**9]  money carried into bank by one man, was the property of another, and taken without his consent; and being a representation, not within the scope of his authority, it was not legally admissible in evidence, looking to him in the relative character of agent only; but he should himself have been called to prove the fact, if within his knowledge, that it was the property of the appellee.
Neither was it admissible on the ground of Samuel Hollingsworth being a party to the suit.
The admissions of a party on the record are always evidence against himself, because, being a party, he cannot be compelled to give evidence against his interest in a court of law.
But that principle does not reach to this case; the suit is against "The President, Directors and Company, of the City Bank of Baltimore," and though Samuel Hollingsworth is the president of that institution, yet he is sued, and is a party on the record only in his corporate capacity, and not in his natural and individual capacity; he has no corporate existence apart from "The President, Directors and Company, of the City Bank of Baltimore," and is only answerable in this suit in that character. There was, therefore,  [**10]  no objection to his being sworn and examined as a witness against the appellants on the ground of his being a party to the suit. And the only objection that could have been plausibly raised to his being examined as a witness, to prove that the bag of dollars, which was taken into the bank by Hugh D. Evans, belonged to the appellee, was, that being a stockholder, he was interested in the fund to be affected by the verdict. But that could not have been an objection on the part of the appellants, nor resting on the ground of incompetency; but if an objection at all, it 

 [*110]  could only have come from Hollingsworth himself, and that on the score of privilege, on the supposed principle that a witness is not, in a court of law, obliged to give evidence against his own interest, or such as may subject him to pecuniary loss. And admitting it to be true, that if he could not have been called, and compelled to give testimony against his own interest, his representation to John S. Gittings, that the bag of dollars taken into the bank by Hugh D. Evans, belonged to the appellee, might for that reason have been given in evidence against the appellants, without his having previously [**11]  refused to be examined, then this inquiry arises, could he, if he had been called, have excused himself from giving evidence of that fact, or against his own interest?
On this subject many nice distinctions are to be found in the books, and some of them not very easily to be reconciled. On the part of the appellee it is contended, that Samuel Hollingsworth, being a stockholder, he could not have been compelled to give evidence against his interest in the funds of the institution, and therefore, that evidence of his representation, relative to the bag of dollars taken to the bank by Hugh D. Evans, was admissible. And the cases of The King vs. The Inhabitants of Woburn, 10 East 395, and The King vs. The Inhabitants of Hardwick, 11 East 578, have been much relied on in argument.
They were both settlement cases. In the first, The King vs. The Inhabitants of Woburn, a rated inhabitant was called as a witness, but refused to give evidence, and it was determined that he was not compellable to give evidence; and in the other case, The King vs. The Inhabitants of Hardwick, it was held that the declarations of a rated parishioner, respecting the circumstances of a settlement, [**12]  were admissible in evidence, because he was not compellable to give testimony. But those cases were not decided on the principle that a person is excused from giving evidence against his interest, but expressly on the ground, that the persons called as witnesses were parties to the proceedings. And in the first case Lord Ellenborough takes the distinction between a party to a suit, who is called to give evidence against his will, by the opposite party, and a mere witness who claims to be exempted from giving evidence 

 [*111]  against his interest. And in The Mayor, &c. of London vs. Long, 1 Camp. 22, it was decided that the declarations of an individual corporator could not be given in evidence against the corporation; and on an occasion in the British house of lords, where the twelve judges were required to give their opinions seriatim, eight of the twelve were of opinion, that a witness was bound to answer every question touching the issue, with the exception of such only as would expose him to a criminal prosecution, or to a penalty or forfeiture. Lord Eldon, and the Lord Chancellor, Lord Erskine, expressed themselves to the same effect. The [**13]  principle recognized by the Lord Chancellor, Lord Eldon, and the eight judges, was, that although in courts of law a party could not be made a witness, yet those persons who were brought forward as witnesses, were equally bound to disclose the whole truth, as the parties were in a court of equity. And Lord Mansfield laid down the rule to be, that where a witness could be forced to answer by a court of equity, in order that his answer might be read as evidence in a court of law, in all such cases a court of law would compel him to answer at the trial. In Taney vs. Kemp, 4 H. & J. 348, it was ruled that a witness is bound to answer a question touching the issue in an action at law, in which he is not a party, although it may establish, or tend to establish, that he owes a debt, or otherwise subject him to a civil suit, or bill in chancery. And if a witness is bound to answer a question, which may establish that he owes, and subject him to the payment of a debt, it is difficult to perceive why he should not be compelled to answer a question, that may have a tendency to lessen the value of his bank stock; and surely there is no principle of justice, which would [**14]  exempt a man from giving evidence of a fact, by the concealment of which he would be enabled to practice a fraud upon another; and what in such case, has a witness to complain of? Why simply, that by being compelled to answer, he is forced to do an act of justice. To such complaints it is not the business of courts of justice to give their attention.
Considering Samuel Hollingsworth then, as not a party to this suit, in his natural and individual capacity, we think he would have been bound, if called as a witness, to answer any question 

 [*112]  touching the issue, though it might injuriously affect his interest as a stockholder; and therefore the evidence of his representation to Gittings, relative to the money taken into bank by Hugh D. Evans, was improperly admitted.
It would be of serious consequence to the people of this state, if a stockholder of a chartered bank could not be compelled to give evidence against the institution, and to such institutions themselves, if evidence could be admitted against them, of the loose declarations of stockholders; and this embraces the subject of the second bill of exceptions, which is taken to the opinion of the court below,  [**15]  overruling an objection on the part of the appellants, to the competency of a witness offered by the appellee, on the ground of his being a stockholder in the bank, the witness himself waiving all objection to being sworn; and we entirely concur in the opinion expressed in that exception.
The evidence set out in the third and last bill of exceptions, in addition to that contained in the first, is substantially that the appellants, having caused a large number of notes, commonly called counter tickets, to be issued, of denominations less than five dollars, signed, some of them by the cashier, some by the teller, the appellee, and some by other officers of the bank, which were paid away and received in the transactions of the bank as notes of a larger denomination were, requested by advertisement the holders of them to bring them in for payment; that a considerable number of them were accordingly brought in, and that payment of the appellee's money, spoken of by John S. Gittings as stated in the first bill of exceptions, was among other purposes, made in discharge of these small notes. On which the court was called upon, on the part of the appellants, to direct the jury,  [**16]  that if they believed the evidence, the appellee was not entitled to recover; which direction the court refused to give. It is not necessary to stop to inquire by what authority those small notes were issued and signed in the manner described; so far as they were taken up, with the money of the appellee, the appellants had the use and benefit of that money, and are chargeable with the amount in this action. As far, therefore, as respects the ten kegs and one bag of dollars, amounting in all to $ 11,000, which are stated in the first bill of exception, 

 [*113]  to have been proved to be the money of the appellee, and paid away in discharge of the debts of the appellants, for any thing appearing in this record, the appellee is entitled to recover; and if the opinion of the court below had been so qualified, we should have concurred in that opinion. But thinking, as we do, that the evidence, as set out in the first exception, of the representation made to the witness by Samuel Hollingsworth, in relation to the bag of dollars that was taken into the bank by Hugh D. Evans, was improperly admitted, and that the appellee was not entitled to recover any thing on that account,  [**17]  we are constrained to dissent from the unqualified refusal of that court, to which the last exception was taken.
JUDGMENT REVERSED AND PROCEDENDO AWARDED.  

8 of 33 DOCUMENTS 

GRIFFITH vs. JARRETT.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

7 H. & J. 70; 1826 Md. LEXIS 17 

June, 1826, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Harford County Court. This was an action of assumpsit, founded on an award of arbitrators selected by the parties. The defendant below, (now appellant) pleaded non assumpsit, and issue was joined.

1. At the trial the plaintiff, (the Appellee) gave in evidence the following award, dated the 3d of July, 1822, and signed by John Archer and two others. "The undersigned, acting as arbitrators in the settlement of accounts between Abraham Jarrett and Edward Griffith, state that they have taken into consideration all matters which were laid before them, in dispute between the parties, and they do hereby award and determine, that there is due from the said Griffith to the said Jarrett the sum of three hundred and sixty-seven dollars and eighty-five cents, bearing interest from the 15th day of February, 1817." Upon the back of this writing was this indorsement: "Note. The arbitrators wish it to be understood by the parties, that they have taken no notice whatever of the claim made by Mr. Griffith for credit for dividends said to be rec'd. by Mr. Jarrett, for bank and insurance stocks." This was also signed by the arbitrators. The plaintiff also gave in evidence the following [**2]  letter written to him by the defendant, and dated the 8th of July, 1822, viz. "In answer to yours of this morning, I have to state, that I received the award on Saturday last from Doctor. Archer, and wrote to him on the subject, which letter I requested him to shew to you; it was to inform you that the amt. of the award would be paid on demand, whenever I was released from my securityship to the guardian of Herman Stump. I shall be at Bush tomorrow, and the money will be paid then, if the release has been made." The defendant then gave in evidence by Doctor John Archer, one of the arbitrators, that the plaintiff and defendant had submitted to the arbitrators who made the award above-mentioned, all matters in difference between them; that one of the matters in difference was the amount of dividends which the defendant alleged had been received on bank stock, from the banks in Baltimore, by the plaintiff, on account of Hannah Stump, who was afterwards the wife of the defendant, which the defendant insisted should be credited by the arbitrators in the award upon the plaintiff's account, which consisted of various items furnished the said Hannah, by the plaintiff, before her marriage with [**3]  the defendant, and of no other items whatever; that the dividends would have exceeded the amount of the said award; that the arbitrators rejected the matter of the dividends, because no evidence was produced before the arbitrators; but referred the parties to the bank books in Baltimore, to ascertain the same, where the evidence was to be procured. And the defendant further gave evidence, in explanation of the said letter, that he, together with several others, had given security in the orphans' court for Elizabeth Jarrett, the wife of the plaintiff, as guardian to William H. Stump; and he offered in evidence the bond so by them entered into, dated the 11th of March, 1817. He further gave in evidence, that the said guardian was, on the 27th of August 1822, in arrear to the estate of the said William H. Stump, to the amount of $ 9,680 07; and that he the defendant, as one of the said securities, was sued for the same. The defendant then prayed the court to instruct the jury, upon all the evidence that the plaintiff was not entitled to recover; which direction the Court [Hanson and Ward, A. J.] refused to give. The defendant excepted.

2. The defendant then further offered in evidence,  [**4]  that the plaintiff had at various times before the marriage of Hannah Stump, which took place in February 1817, received dividends upon the stock in the banks and insurance companies of Baltimore, to the amount of the said award; and that those moneys had never been accounted for by the plaintiff; but this evidence the court rejected. The defendant excepted; and the verdict and judgment being against him, he appealed to this court.  

DISPOSITION:
JUDGMENT REVERSED.  

HEADNOTES:

J and G submitted by parol all matters in dispute between them to arbitration. Under this submission the arbitrators made an award, stating "that they had taken into consideration all matters which were laid before them in dispute between the parties, and they do hereby award and determine that there is due from G to J, $ 367," &c. On the back of the award was this endorsement, without date, signed by the arbitrators: "Note. The arbitrators wish it to be understood by the parties, that they have taken no notice whatever of the claim made by G for credit for dividends said to be received by J for bank and insurance stocks." In an action of assumpsit on this award, it was in evidence, that the subject of the dividends alluded to in this endorsement, was one of the matters in dispute, and one of the subjects of the reference--Held, that the plaintiff was not entitled to recover. That as the endorsement on the award was without date, it must be inferred to have been made at the time the award was, and to have been intended to form a part of it. That therefore the award was defective in two essential particulars--1. In its being only of parcel of the submission. 2. In its not being final on the subject of the submission.--Held also, that it was competent in this action for the defendant to give in evidence that the plaintiff was indebted to him for dividends received on the said bank and insurance stocks. 

COUNSEL:
Mitchell, for the Appellant, contended, that the award was null and void, as it awarded on part only of the matters submitted to arbitration. That it was not a final award of all differences, and that it was not mutual. He referred to Kyd on Awards, 171, 208, 215, 216, 218, 219, 220; and 1 Com. Dig. 185.

Magruder and R. Johnson, for the Appellee, cited Chapman vs. M'Cann, decided in this court at June term 1824. (MS.)

Curia adv. vult.  

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

OPINIONBY:
STEPHEN 

OPINION:

 [*72]  STEPHEN, J. at this term delivered the opinion of the court. The suit in the court below was founded upon an award made by certain referees, in virtue of a submission [**5]  by parol of all matters in difference between the plaintiff and defendant. In the course of the trial the defendant proved, by one of the arbitrators, that one of the matters in controversy between the parties, was the amount of certain dividends, alleged by the defendant to have been received by the plaintiff on bank stock in certain banks in Baltimore, an account of Hannah Stump, while sole, but who afterwards intermarried with the defendant, 

 [*73]  which he insisted should be credited to him in the award upon the plaintiff's account, which consisted of sundry items furnished the said Hannah, by the said Jarrett, before her marriage with the defendant, and of no other items whatever, and that the dividends would have exceeded the amount of the said award; that the arbitrators rejected the matter of the dividends, because no evidence was produced before them, but referred the parties to the bank books in Baltimore, to ascertain the same, where the evidence was to be procured. On the back of the award was the following note or memorandum: "Note. The arbitrators wish it be understood by the parties, that they have taken no notice whatever of the claim made by Mr. Griffith for credit [**6]  for dividends said to be received by Mr. Jarrett for bank and insurance stocks" This endorsement has no date, and is presumed to have been written at the same time the award was made. It is signed by all the referees who signed the award, and was no doubt intended to be a part thereof; and no reason is perceived in point of law why it should not have that effect. Ascribing to it this faculty of explaining the scope and operation of the award, it manifestly results, as a necessary legal consequence, that the award is not good or binding upon the parties. It is deficient in two essential attributes of a valid award. It must not be of parcel only of the things submitted. Kyd on Awards, 171. And it must be final, so as to prevent any future litigation on the subject of the submission. Ibid 208.
This court are of opinion, that the court below erred in their opinions expressed in both bills of exceptions.
JUDGMENT REVERSED.  

9 of 33 DOCUMENTS 

HOWARD vs. RAMSAY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

7 H. & J. 113; 1826 Md. LEXIS 22 

June, 1826, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court. Replevin. The case is fully stated in the opinion delivered by this court.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

Replevin for goods and chattels taken in the house of the plaintiff the 20th February 1822. The defendant avowed the taking, &c. because one J. J. for two years ending the 22d August, 1821, and from thence until, &c. held and enjoyed the said house, as a sub-tenant thereof, to one W. M. he being the assignee of one S. R. of a lease before then assigned to S. R. by one N. R. the lessee in a demise made by the defendant and J. G. H. her then husband, to N. R. on the 22d August, 1801, under a rent of $ 100, payable on the 22d August annually, for the term of 99 years, &c. And because $ 200 of the said rent, for two years ending the 22d August, 1821, was due and in arrear under said demise by defendant and her husband, who, seized of the premises only in right of the defendant, died the 25th of November 1819, the defendant avowed the taking the said goods and chattels as for distress for said rent so due to her. To this avowry the plaintiff pleaded three pleas--1. That the defendant did not demise the house, &c. in manner and form as is in the avowry alleged. 2. That said J. J. did not hold and enjoy the house as tenant thereof to the defendant, under the supposed demise thereof in the avowry mentioned, in manner and form, &c. 3. That there was no rent in arrear, &c. To the first two pleas the defendant demurred, and took issue on the third--Held, first, that the first plea was bad in substance, because the demise stated in the avowry was a joint demise by defendant and her husband, and the plea traversed a demise by the defendant only, which was the tender of an immaterial issue that would not be cured by the verdict. Held, secondly, that the second plea was good, because the demise it referred to and traversed, was the joint demise by defendant and her husband, stated in the avowry, and by the avowry J. J. was sufficiently, though indirectly, asserted to be the tenant whose goods were subject to the distress; and that if by the avowry it appeared that J. J. was in no degree, and for no purpose, the tenant of the avowant, the avowry itself would be had. Held, thirdly, that as the second plea, which was ruled good on the demurrer, went to the whole cause of action of the avowant, it was necessary to try the issue in fact joined on the third plea.

In covenant there must be a perfect privity between plaintiff and defendant, but such privity is not necessary to make one's goods liable to a distress for rent as a tenant. A distress is rather a remedy upon the land demised, than against the person of a tenant, although some tenancy must be shown to sustain it.  

COUNSEL:
Mitchell, for the Appellant. This is an appeal from Baltimore county court in an action of replevin brought for various articles of furniture distrained by Mary W. Howard for rent in arrear. The avowry justifies the taking, &c. in a dwelling-house of the avowant, because one John Ilgenfritz, for the space of two years ending on 22d August 1821, and from thence until the time when, &c. held and enjoyed the said dwelling-house as sub-tenant to W. M'Mechen. That M'Mechen was assignee of a lease for 99 years, given by Mrs. Howard and her husband, to one Reynolds, on the 22d day of August 1801. That her husband died on the 25th of November 1819, and that he was seized of the premises only in her right, &c. To this avowry, Ramsay, the plaintiff below, pleaded three pleas. 1. That the said Mary did not devise in modo et forma 2. That John Ilgenfritz did not hold and enjoy the said premises as tenant thereof to the said Mary, under the said demise, in manner and form, &c. 3. That no part of the said rent was in arrear from the said Ilgenfritz as alleged,  [**2]  &c. To the two first pleas the avowant demurs, and joins issue on the third. At the trial, the court having heard the demurrers, first gave judgment overruling the demurrers, and immediately proceeded to enquire the damages for the plaintiff, and to give final judgment for him, without proceeding to try the issue at all. It was moved at the trial, by the defendant, that the issue in fact should first be tried before final judgment rendered, but the court refused; and to this refusal the defendant's counsel tendered a bill of exceptions, which the court refused to sign or seal; and of these proceedings the defendant complained, and insists they are all erroneous.

1. Because the demurrers ought to have been sustained--To the first plea, because it does not answer any matter stated in the avowry. The defendant averred a demise from James G. Howard and Mary Howard. The plea only denies a demise from Mary Howard alone, which is materially different. The avowry sets out a joint interest. The plea only denies a separate interest or title. Mary Howard, being a feme covert, could not have demised such an estate; without joining her husband, it would have been void. The defendant laid a [**3]  good demise. The plaintiff does not deny that such a demise was made, and could if proved, have sustained the avowry; but sets up a void demise, which the avowant could not have proved. The plea, therefore, was substantially defective; for if the avowant had taken issue upon it, it would have been a departure from the avowry, and so might have been demurred to by the party tendering the issue. As to the second plea, the demurrer ought not to have been overruled, for the same reasons. It being laid in the avowry that Ilgenfritz held and enjoyed under a joint demise, and the plea merely denying that he held under a separate demise, &c. The one averring a joint title, and the other denying only a separate and exclusive title.

2. But if the court were right in their judgment upon the demurrers, they erred in giving judgment in chief without trying the issue in fact joined upon the third plea, because the third plea was not disposed of by their judgment upon the two first. The two first pleas, if correct, only traversed the demise, and the third plea expressly admits the demise as laid in the avowry, and the holding and enjoyment of the said Ilgenfritz under it; and an admission of [**4]  these facts upon the record, is conclusive against the plaintiff. The two pleas might be true, in point of fact, and yet the question be open as to the points involved in the third. The two first pleas only deny a separate demise from Mary Howard, and the demurrers admit there was no such demise; but then the third plea admits that Ilgenfritz held under a joint demise from James G. Howard and Mary Howard, as laid in the avowry, but avers there was no rent in arrear upon this joint lease. The questions were, therefore, materially distinct, and the avowant would have been entitled to judgment if she could have proved rent in arrear upon this joint lease, notwithstanding the judgment upon the demurrers. That a plea of "nothing in arrear," admits the demise as laid, was decided by the supreme court of the U. S. in Alexander vs. Harris, 4 Cranch, 299, and cases there cited. That the issues must be disposed of before a final judgment on demurrers. 5 Com. Dig. 483, tit. Pleader, (Q. 1.)

The court below erred, therefore, 1. In overruling the demurrers. 2. In giving final judgment without disposing of the issue in fact, or giving some judgment upon that issue by entry of non pros or otherwise.  [**5]  

Glenn, for the Appellee. The special causes of demurrer to the first and second pleas are abandoned; and the only question on the demurrers is, whether both of those two first pleas are bad in substance. 1. Is the first plea bad? At common law a lease, by husband and wife, of wife's land, if made by parol, was absolutely void. Walsall vs. Heath, Cro. Eliz. 656. And if by writing, was voidable by wife, or her heirs. Chambers on Leases. 221, 222. But by stat. 32, Hen. VIII. ch. 28, leases made in writing by husband and wife, are good and effectual against the lessors, their heirs and successors, &c.

This statute remedies the defect of the common law, and gives the lessee an estate for the term, rendering rent to husband during joint life of himself and wife, and after death of wife, to her heirs. Hill vs. Saunders, 2 Bingh. 116, per Best, Ch. J. The lease then of husband and wife, of wife's land, is in fact, after husband's death, the lease of the wife, the rent being reserved to her and her heirs, and the husband, by the above statute, being restricted from alienating beyond the coverture. But by the stat. of 11 Geo. II. ch. 19, the landlord being dispensed from setting out [**6]  his title altogether, and only required to aver an enjoyment by a tenant of the lands under a demise, during the time in which the rent distrained for incurred, and which rent still remains due; and all pleadings being only required to answer the legal effect of anterior pleading. In this case the rent distrained for having incurred during the time when Mrs. Howard was sole seized of the premises demised, the legal effect of the avowry is a demise by her of the premises during the time the rent incurred became due; and for this reason the plea that she did not demise, in the manner by her alleged, is good. Moreover the true import and effect of this plea non demisit, is that the relationship of landlord and tenant did not exist between the avowant and the supposed tenant of the avowant; and of course a plea that avowant did not demise, as by her is above alleged, is a full answer to her statement of a demise of her lands by baron and feme, and that baron died, and she survived him, before any of the rent claimed became due.

2. But suppose the appellee is wrong on this point, the second plea is unquestionably good. It is this, that Ilgenfritz did not hold as tenant of Mary Howard [**7]  under the supposed demise thereof in said avowry mentioned, in manner and form as she hath alleged in her avowry. Could he have pleaded that he did not hold as tenant of Mrs. Howard and her husband? No: Because her husband was dead before any rent claimed in this suit became due. How was the appellee then liable? Only as tenant of Mrs. Howard, who survived; of course the only proper plea must be--not tenant of Mrs. Howard, whose tenant was Ilgenfritz when the rent became due. If the rent had been due for a time before baron's death, perhaps this plea might be bad; but surely where the claim is by Mrs. Howard alone for rent due to her alone, the only answer must be that the appellee is not her tenant; and in fact it is utterly impossible to frame any other plea to meet the case. About this then there can be no doubt; and either plea to the avowry being good, the avowant is defeated; for let it be remembered, that in replevin both parties are plaintiffs or actors, and where the avowant avows for rent he becomes peculiarly a plaintiff; and if any one plea of a tenant be good or sustained, the avowant or plaintiff is defeated. To put an instance of a plaintiff in an ordinary suit. He declares [**8]  in debt, defendant pleads nit debet and limitations, and the last plea is found for defendant, he has judgment, although the plaintiff succeeds on the first. So here the appellee succeeding on one plea, which goes to the whole case, the avowant or plaintiff is altogether defeated.

3. The issue in fact was not tried, nor was it proper to try it. Tidd in his practice 684, says, where there is an issue in fact and an issue in law, and the issue in law goes to the whole cause of action, and be determined against the plaintiff, it is conclusive, and there is no necessity to try the issue in fact. This is in point upon this plea; and the ingenious reasoning of the appellant's counsel would answer very well if there was no such thing as pleading double; but he knows we can plead double to an avowry; and that if a precedent plea go to the whole avowry, there can be no necessity to try another one going only part. The plea of riens in arrere alone does admit the demise, but when with this plea no demise is also pleaded by leave of the court, the demise is not admitted. This double pleading is for the benefit of the defendant. There is no averment in the avowry of rent due to baron and [**9]  feme. The two years rent is averred to grow due after baron's death, where he was seized only in right of feme during the coverture, of course by the avowants own shewing nothing is due while the lease was joint and the rent jointly due.

Curia adv. vult.  

JUDGES:
Case was argued at last June term, before BUCHANAN, Ch. J. and EARLE, STEPHEN, ARCHER, and DORSEY, J.  

OPINIONBY:
EARLE 

OPINION:

 [*118]  EARLE, J. at this term, delivered the opinion of the court. This appeal presents the case of a replevin founded on a distress for rent. The plaintiff, Robert Ramsay, declared for taking his goods and chattels on the 20th of February 1822, in his house, situate on the Baltimore and York Turnpike Road in Baltimore county. Mary W. Howard, the defendant, avowed the taking the goods and chattels in the declaration mentioned, in the dwelling-house of the plaintiff, because one John Ilgenfritz for a long time, to wit, for the space of two years ending on the 22d of August 1821, and from thence until, &c. held and enjoyed the said dwelling-house, as a subtenant thereof to one William M'Mechen, the said William being the assignee of one Samuel Reynolds, of a lease or demise [**10]  before then assigned to the said Samuel by one Nicholas Reynolds, the lessee named in a demise or lease made to the said Nicholas, as lessee, by her the said Mary W. Howard, and James G. Howard, her then husband, on the 22d of August 1801, under a certain rent of $ 100, payable on the 22d of August in each and every year, for the term of 99 years from thence next ensuing, over and above all taxes and assessments 

 [*119]  whatever. And because $ 200 of the rent aforesaid, for the space of two years ending on the 22d of August 1821, was due and in arrear, by virtue and under the said demise by her, and her husband James G. Howard, who seized of the premises only in right of his wife, died on the 25th of November 1819, she avowed the taking the said goods and chattels, in the said dwelling-house, as and for and in the name of a distress for the said rent, so due and in arrear to her the said Mary W. Howard. The plaintiff pleaded three distinct pleas to this avowry. They are as follow: "And the said plaintiff, as to the said avowry of the said Mary said, that the said Mary, by reason of any thing by her in that behalf alleged, ought not to avow the [**11]  taking of the said goods and chattels in the said place in which, &c. and justly, &c. because he says, that the said Mary did not demise the said premises in which, &c. in manner and form as the said Mary hath above in said avowry alleged; and this the said Robert prays may be inquired of by the country. And for further plea in this behalf, by leave of the court here first had and obtained, according to the form of the statute in such case made and provided, the said Robert comes and says, that the said Mary, by any thing in the said avowry alleged, ought not to avow the taking of the said goods and chattels in the said place in which, &c. and justly, &c. because he says, that said Ilgenfritz did not hold and enjoy the said premises in which, &c. with the appurtenances, as tenant thereof to the said Mary, under the said supposed demise thereof in the said avowry mentioned, in manner and form as the said Mary hath above in her said avowry in that behalf alleged; and this he, the said Robert, prays may be inquired of by the country, &c. And for further plea in this behalf, by leave of the court here first had and obtained, according to the form of [**12]  the statute in such case made and provided, the said Robert says, that the said Mary, by any thing in her said avowry contained, ought not to avow the taking of the said goods and chattels, in the said place in which, &c. to be just, because he says, that no part of the said supposed rent, in the said avowry mentioned, was or is in arrear from the said Ilgenfritz to the said Mary, in manner and form as the said Mary hath in her said avowry in that behalf alleged; and this he, the said Robert, prays may be inquired of by the country, &c."

 [*120]  To the two first of these pleas, the defendant demurred specially, and assigned for cause of demurrer, that the conclusion of the said pleas is to the country, and ought to have concluded with a verification, and that they are both otherwise informal, &c. And to the third plea to the avowry the defendant joined issue with the plaintiff.
The court below overruled the demurrers, and immediately charged the attending jury to inquire into the damages sustained by the plaintiff, Robert Ramsay, by reason of the unlawful taking and unjust detention of the goods and chattels in the declaration mentioned, who in an [**13]  inquisition returned assessed the same to one cent damages, and costs, &c. On this finding the court gave final judgment, and refused to direct the jury to be sworn to try the issue in fact upon the third plea, upon the ground that the judgment rendered on the demurrers to the first and second pleas, was a bar in law to the defendant's further progress in the suit.
Having made this full statement of the case, in which more than usual particularity has been observed, because it involves the subject of pleading, we proceed to an examination of the questions of law arising out of it. The special causes of demurrer to the two first pleas have been abandoned, and the appellant must therefore be considered as contending, that those pleas are substantially defective. It is the opinion of this court, that the first plea to the avowry is bad in substance, and that Baltimore county court ought not to have overruled the demurrer to that plea. The avowry states a demise on the 22d of August 1801, to Nicholas Reynolds, for 99 years, by the husband and the wife. It also states the death of the husband on the 25th of November 1819, and the consequent survivorship of the wife, and the [**14]  accruing of the rent distrained for, after the death of the husband, and during the sub-tenancy of Ilgenfritz. The plea in bar of this part of the avowry, traverses a demise by the wife only, in manner and form as therein alleged; and the ready answer is, that no such demise by the wife is alleged in the avowry. The allegation of the avowry points to a demise by James G. Howard, and Mary W. Howard his wife; the plea responds a demise by Mary W. Howard only. The one sets forth a joint demise; the other insists on a separate demise. 

 [*121]  And the real question is, does this distinction between the demises mark the defective character of the plea? We are fully impressed with the opinion that it does; and we test it by remarking, that the issue tendered by this plea is an immaterial issue, and such as would not have been cured by a verdict. It is not a case where a material allegation is traversed inartificially, for then the issue taken upon it would have been informal, and aided after verdict. But it is a case where a material allegation is overlooked by the plea, and a point is traversed, that will not determine the merits of the cause; and, ex consequenti [**15]  , the issue tendered is an immaterial one. And that the issue tendered here is an immaterial issue, is a position that seems to us to be well supported by the case of Carpenter vs. Stair, reported in 1 Roll. 86, referred to by 3 Saund. 319, (note 6.) It was an action of trespass, where the defendant pleaded in bar an award between the plaintiff and J S and the defendant, and several others, that the defendant should pay to the plaintiff and J S, a certain sum in satisfaction of the trespass, and which he had paid to the plaintiff. The plaintiff replied there was no such award between the plaintiff and defendant, as the defendant alleged; and on issue joined, and verdict for plaintiff, it was held, he should not have judgment, because he did not traverse the same award set out in the defendant's plea, but put in issue an award which was not alleged in the plea. The position is further illustrated by the case of Sandback vs. Turvey, Cro. Jac. 585. To debt on bond the defendant pleaded payment of a less sum than the sum mentioned in the condition of the bond; the plaintiff replied, that he did not pay the sum mentioned in the condition of the bond; and [**16]  verdict, that the defendant did not pay the said sum of the bond; this, says the case, is an immaterial issue, not aided by the verdict, for the plaintiff has not traversed the same payment that is in the defendant's plea.
As to the subject of the second plea, the avowry states, that Ilgenfritz for a long time, to wit, for the space of two years ending on the 22d of August 1821, and from thence until, &c. held and enjoyed the said dwelling house, as a sub-tenant thereof to one William M'Mechen; and the negative allegation of the plea is, that Ilgenfritz did not hold and enjoy the said premises, &c. as tenant thereof to the said Mary, under 

 [*122]  the said supposed demise thereof in the said avowry mentioned, in manner and form as the said Mary hath above in her said avowry, in that behalf alleged. The counsel for the appellant has urged, that the demurrer to this second plea involves a consideration of the point above decided on the first plea; and that as to the second plea it ought to receive a like decision, and the judgment on this demurrer ought to be reversed. On the most mature reflection we cannot, in this respect, agree in opinion with the counsel.  [**17]  The demise referred to in the second plea, is the demise by the husband and the wife; for its language is, "under the said supposed demise thereof in the said avowry mentioned." The rent distrained for is said to have accrued under this demise, after the death of the husband; and to sustain the avowry for it, the wife must establish such a relation between her and the party distrained upon, as may in law constitute him in some degree her tenant. Ramsay in this business is a mere stranger, whose goods and chattels have been found upon the premises, and Ilgenfritz is the person who is indirectly asserted to be the tenant whose goods and chattels are liable to the distress. He is called in the avowry sub-tenant to William M'Mechen, the assignee of the lease for 99 years; and if we could for a moment suppose it is thereby meant, that he is in no degree, and for no purpose, the tenant of the avowant, we should incline to think that the avowry is in itself faulty. On the contrary, if the appellation is used to signify the relationship of landlord and tenant between the avowant and Ilgenfritz, which is presumed to have been its object, it is not inappropriately declared in [**18]  the plea that Ilgenfritz did not hold and enjoy the said premises as tenant thereof to the said Mary. And for using this language, the plea is not to be determined to be bad in substance. It is the denial only of a tenancy, which the avowant contends for, and without establishing which, according to the view we have taken of the subject, she cannot support her avowry. A traverse of the sub-tenancy would have amounted to the same thing.
A perfect privity between plaintiff and defendant is not to be dispensed with in an action of covenant for rent arrear; and for the want of it the decisions have been, that covenant could 

 [*123]  not be sustained against an under lessee. Holdford vs. Hatch, Doug. 183. The same degree of privity, it would seem, is not necessary to render a person's goods liable to a distress for rent as a tenant. A distress is rather a remedy upon the land, than on the person of a tenant, although some tenancy must be shown to sustain it. In Bradby on Distresses, 112, it is said, that for the purpose of distraining, a tenancy in effect should subsist, without reference to the manner in which it is created; the only question being, whether the [**19]  relation between the parties does really constitute a tenancy. And in his next page he states, that the occupation of the under-tenant to the lessee, must indeed, in general, be considered with respect to the lessor, as the possession of his lessee, and therefore, that the goods of such under-tenant are liable to be distrained during the continuance of the original lease. And that such under-tenant is treated as the tenant of the original lessor for the purposes of a distress, may be seen by a case decided by Lord Ellenborough in the year 1805. It is the case of Forty vs. Imber, 6 East 435, 436. Upon the whole, we concur with the court below in their opinion in relation to the demurrer to the second plea, and think they were right in overruling it.
There yet remains a question, connected with this case, to be examined by us. The court below refused to direct the jury to try the issue in fact joined by the parties on the third plea. It is contended there is error in this opinion and refusal of the court, and that the jury ought to have been impanelled to try the issue in fact. This depends on the correctness and effect of the judgment pronounced on the demurrers. Where the [**20]  issues in law, determined against the plaintiff, go to the whole cause of action, they are conclusive, and there can be no occasion to try the issue in fact. 2 Tidd's Pract. 685. The demurrer to the first plea here was incorrectly decided, as we have said above; but the court were right in their opinion on the demurrer to the second plea; and the only point is, whether the issue in law joined in that demurrer goes to the whole cause of action or avowry on this case; and we think it clearly does. The fact admitted by the demurrer is, that Ilgenfritz was not the tenant to the avowant, as in her avowry alleged; and this admission leaves to the avowant the naked case of a 

 [*124]  landlord distraining for rent, without any specified tenant distrained upon. Ilgenfritz is confessed not to have held and enjoyed the premises as tenant to Mary W. Howard, and Ramsay's goods found thereon, cannot be taken to satisfy the rent of a man, whose own goods could not be distrained to pay it.
JUDGMENT AFFIRMED.  

10 of 33 DOCUMENTS 

L. & I. RIGGIN vs. THE PATAPSCO INSURANCE COMPANY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

7 H. & J. 279; 1826 Md. LEXIS 38 

June, 1826, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court. This was an action of covenant, brought by the insured, (the appellants,) against the insurers, (the appellees,) upon a policy of insurance on the schooner Two Brothers, at and from Baltimore to St. Bartholomews, &c. for a total loss by the perils of the sea. The defendants pleaded non infregit conventionem, and issue was joined.

At the trial the plaintiffs gave in evidence the policy of insurance declared upon, which was duly proved, dated the 5th of May 1821, in which it is set forth "that the Patapsco Insurance Company have insured, and hereby do insure, L. & I. Riggin, as well in their own name as in the name or names of all and every other person or persons to whom the same doth, may or shall appertain, in part or in the whole, lost or not lost, at and from Baltimore to St. Barts, and at and from thence to St. Martha, on the Spanish Main, with the privilege of returning to St. Barts, or using three other ports on the Main, or in the West Indies, and at and from any of them back to Baltimore, two thousand dollars, upon the body, tackle, apparel, and other furniture of the schooner, called Two Brothers, whereof is master for the present [**2]  voyage,     Cochran, or whoever else shall go for master in the said vessel. Beginning the adventure upon the said vessel, tackle, apparel and furniture, at and from Baltimore aforesaid, and continuing the same until the said vessel be arrived at the ports aforesaid, and until she be moored there twenty-four hours in good safety: the said vessel, her tackle, apparel and furniture, for so much as concerns this insurance, by agreement between the insured and the insurers, are and shall be valued at    . And it shall and may be lawful for the said vessel, in her voyage, to proceed and sail to, touch and stay at, any ports or places, if thereunto obliged by stress of weather, or other unavoidable accident, without prejudice to this insurance. The adventures and perils which we, the insurers, are contented to bear and take upon us in this voyage are, of the seas, men of war, fire, enemies, pirates, rovers, thieves, jettisons, letters of mart and countermart, surprisals, takings at sea, unlawful arrests, restraints and detainments, of all kings, princes and people, of what nation, condition, or quality soever, barratry of the master and mariners, and all such other perils, losses and [**3]  misfortunes, that have or shall come to the hurt, detriment, or damage of the said vessel, or any part thereof, as insurers are legally accountable for; warranted, nevertheless, by the insured, free from any charge, damage or loss, which may arise in consequence of a seizure or detention of the said schooner, or of the goods laden or to be laden therein, by reason or on account of any illicit or prohibited trade, or trade in articles contraband of war," &c. The plaintiffs further proved, that at the time the insurance was effected, and at the time of the loss hereinafter mentioned, the said vessel was the property of the plaintiffs. That said vessel being tight, staunch and strong, sailed on the voyage insured, on the fifth day of May 1821, and arrived at St. Barts on the 28th day of the same month; that the captain and supercargo were there informed, and had good reason to apprehend, that St. Martha, which at the time of the sailing from Baltimore, was in the possession of the Patriots, had fallen into the hands of the Royalist Spaniards, and having learned that the same port on a former occasion having been in possession of the Patriots, had fallen into the hands of the Royalists,  [**4]  who had, by keeping the Patriot flag flying, decoyed vessels into port, and seized, detained and confiscated them; and apprehending a similar fate, and learning at St. Barts that Marguarita, a West India Island, was the best and safest port or place at which to acquire information relative to the situation of St. Martha, proceeded there; and having learned there that St. Martha was still in the possession of the Patriots, without loss of time proceeded directly for that port, and in the direct course of her voyage, was wholly lost by the perils of the sea. The defendants, on their part, offered evidence that the said schooner Two Brothers, on her arrival at St. Bartholemews, in the prosecution of the voyage insured, learnt by rumors there prevailing, that St. Martha was in the possession of the Royalists forces of the government of Spain, and that it would be unsafe to proceed there, as by the colonial laws of Spain all intercourse was interdicted between foreigners and her colonies. And the defendants further offered evidence, that Marguarita was at the distance of 600 miles from St. Martha, and was much out of the usual track of a voyage from St. Barts to St. Martha, and was never [**5]  pursued by a vessel, having the aforesaid port in view as her immediate destination; that the island of Curracoa is in the direct route of the voyage from St. Barts to St. Martha, and that it is more than one third less in the actual distance than Marguarita, and about 300 miles distant from St. Martha; that Curracoa was an open port, free for the reception of Spanish and Colombian vessels of war, and for the vessels of all other nations, and that constant intercourse was kept up between Curracoa and St. Martha, and that information in relation to the last mentioned port, would be heard at Curracoa, in the course of three or four days, that being the usual length of the voyage between those places, and that Curracoa was resorted to by neutral vessels for intelligence as to the state of the Spanish Main. That Curracoa is a place of deposit or entre port for large quantities of merchandize which are intended to be carried to the different ports on the Spanish Main, and which are from time to time, placed there, and removed according to the state of the market and the situation of the ports on the Main, whether in the possession of the royalists or independents, and that these facts in [**6]  relation to Curracoa, were well known in Baltimore, previous to, and at the time of, the sailing of the said vessel on the voyage insured. And the defendants further offered evidence, that the said vessel sailed from the port of St Barts for Marguarita, having no other information of the actual state of St. Martha than what they received in the general rumor which prevailed at St. Barts, and that it was well known at St. Barts that Curracoa was the nearest place to St. Martha, where correct information was at all times to be obtained, of the state and condition of the government at St. Martha. And the defendant also offered evidence that the said vessel remained at Marguarita for the period of four days after her arrival, having been detained by the officers of the government of that place, who kept the register of said vessel till that time. And the defendants also offered evidence, that St. Martha had not been in the possession of the Royalists, and that the information received at St. Barts on that subject, was wholly unfounded. That the vessel sailed from the port of Marguarita on a voyage to the port of Maracaybo, another port on the Spanish Main, having altogether abandoned the [**7]  voyage to St. Martha, and that in the prosecution of the voyage to Maracaybo she was lost on the island of Little Curracoa, which lies between the ports of Marguarita and those of Maracaybo and St. Martha, and that the said last mentioned island is in the direct route to both of the said ports. The defendants further offered evidence, that the said vessel received on board, at the port of Baltimore, previous to her sailing on the voyage insured, three or more military officers in the service of the Colombian Republic, one of the independent governments of South America, for the purpose of transporting them to St. Martha, to unite with the military forces of said republic, in the war then carrying on between Spain and the said Republic, and that the said officers remained on board said vessel at the time of her loss on the island of Little Curracoa. And the plaintiffs then offered evidence to disprove the whole of the facts stated in the preceding case of the defendants; and moved the court to direct the jury, that if they should believe, that upon the arrival of the vessel insured at St. Barts, it was generally reported that Santa Martha was in possession of the Royalists, and that [**8]  the master and supercargo were informed at St. Barts, and verily believed, that Marguarita was the best and nearest place to obtain information relative to the situation of Santa Martha, and that the master of said vessel, in the exercise of an honest and sound discretion, went to Marguarita for information, that then his proceeding there was no deviation, and that the plaintiffs were entitled to recover for a total loss. Which instruction the Court, [Archer Ch. J. and Ward, A. J.] refused to give. The plaintiffs excepted; and the verdict and judgment being against them, they appealed to this court.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

On a marine policy of insurance against particular risks, the underwriter is supposed tacitly to assent to all reasonable efforts which the master may find it necessary to make for the safety of the property insured, and its transportation to the port of destination, and to authorize him to avoid urgent danger, whether such danger be from a peril insured against or not.

There is no distinction between cases of physical and moral necessity as justifications for departure from the course of the voyage.

In every contract of marine insurance, it is the obligation of the assured to provide a master of competent skill and prudence; and if in a change of the course of the voyage a loss happen, which may be justly attributed to the master's not being of that character, the insurance is discharged.

The mere apprehension of danger, not founded upon reasonable evidence, does not justify a deviation. The peril apprehended must be such as, if encountered, loss or serious injury is the necessary consequence; the danger must be imminent and obvious, not problematical or contingent--

In an action of covenant on a policy of insurance, against the usual risks, on a vessel "from Baltimore to St. Barts, and at and from thence to St. Martha on the Spanish Main, with the privilege of returning to St. Barts, or using three other ports on the Main, or in the West Indies," dated the 5th of May 1821--it appeared that the vessel sailed the 5th May, 1821, and arrived at St. Barts the 28th; that the captain and supercargo were there informed that St. Martha, which at the time of the vessel's leaving Baltimore was in the possession of the Patriots, had fallen into the hands of the Royalist Spaniards; and having learned that the same port, on a former occasion, having been in the possession of the Patriots, had fallen into that of the Royalists, who had, by keeping the Patriot flag flying, decoyed vessels into port, and confiscated them; and learning at St. Barts, that Marguarita, a West India Island, was the best place to acquire information as to the situation of St. Martha, proceeded there. On getting there, learning that St. Martha was still in the possession of the Patriots, the vessel proceeded without loss of time to that place, and in the direct course of the voyage there, was lost by the perils of the sea. Marguarita was not in the usual tract of a voyage from St. Barts to St. Martha.

Held, that the going to Marguarita was a deviation which discharged the underwriters. That the danger apprehended by the captain of condemnation at St. Martha, was not so obvious or imminent, as to excuse the departure. That as it was not alleged, that on the occasion when condemnations were proved to have been made at that port before, American or neutral vessels had been condemned, such acts of outrage could not be imputed to the agents of a civilized nation.

Held also, that as there appeared to have been another port in the direct voyage from St. Barts to St. Martha, at which the master might have obtained the information as to the condition of St. Martha, it was his duty to have known that fact, and to have gone to such port for information, if the danger of condemnation at St. Martha had been obvious and imminent.

Where there is no evidence before the jury of a fact, or the evidence offered is so vague and indefinite that no rational inference of such fact can be deduced from it, the court ought to direct the jury that it is not competent for them to find such fact.

Where the facts are admitted, the question of deviation is one of law.

There is no difference between a statement in a bill of exceptions, that certain facts were proved, and that evidence was offered of them.  

COUNSEL:
Meredith, for the Appellants. The question is, whether under the circumstances stated in the bill of exceptions the captain of the vessel insured was guilty of such a deviation in proceeding to Marguarita, as will discharge the insurers from responsibility for the loss that subsequently occurred? The negative of this proposition will be contended for on the part of the appellants. To exonerate the insurers by a deviation, it must be a voluntary departure from the voyage insured. A departure, proceeding from necessity, is excusable. The deviation in this case,  [**9]  was a justifiable one, and could not affect the insurance. Where the deviation proceeds from a fear of danger, arising from well grounded information, it is excusable. Where the vessel, from stress of weather, is driven into a port out of the course of the voyage insured, or by mutiny of the crew, or in avoiding capture, &c. the insurance is not affected. To show that this was a justifiable deviation, he cited Reade & Jephson vs. Commercial Insurance Company, 3 Johns. Rep. 352. Phillips on Ins. 192, 194, 195. Oliver vs. Maryland Insurance Company, 7 Cranch, 493. Whitney vs. Hayden, 13 Mass. Rep. 172. Patrick vs. Ludlow, 3 Johns. Cas. 10. Smith vs. United Insurance Company, 1 Johns. Rep. 249. Lee vs. Gray, 7 Mass. Rep. 349. Hadkinson vs. Robinson, 3 Bos. & Pull. 388. 1 Park, 262. Enderby vs. Fletcher, at N. P. 1780, Per Lord Mansfield. Graham vs Commercial Insurance Company, 11 Johns. Rep. 352. 1 Marsh. 205. The Santissima Trinidad, 7 Wheat. 283. Even if the peril was not insured against yet the deviation was justifiable. A policy of insurance is to be construed for the advantage of trade--for the benefit of the insured, and according to the intention of the parties. 1 Marsh. 304, 204.  [**10]  To show that the deviation was justifiable, although the risk against which it was the intention to guard was not insured, he cited Lubbock vs. Rowcroft, 5 Esp. Rep. 50. Saltus vs. United Insurance Company, 15 Johns. Rep. 526. Green vs. Elmslie, Peake's N. P. 212. Scott vs. Thompson, 4 Bos. & Pull. 181. Robinson vs. Marine Insurance Company, 2 Johns. Rep. 89. Phill. on Ins. 214. United States vs. Palmer, 3 Wheat. 610, 636. The Divina Pastora, 4 Wheat. 52. Richardson vs. Maine Insurance Company, 6 Mass. Rep. 105. Earle vs. Rowcroft, 8 East, 126. Barker vs. Blakes, 9 East, 283. Bird vs. Appleton, 8 T. R. 562. Vasse vs. Ball, 2 Dall. 270. 1 Marsh. 439, 449, 415, 434, 436, 203. Marine Insurance Company vs. Tucker, 3 Cranch, 357.

Mayer, for the Appellees. There is no difference between a statement in a bill of exceptions, that certain facts were proved, and that they were offered in evidence. Where a vessel goes out of the course of the voyage insured in order to avoid a peril not insured against, the insurance is void, and the insurers are discharged. Breed vs. Eaton, 10 Mass. Rep. 21. Roget vs. Thurston, 2 Johns. Cas. 248. O'Reilly vs. The Royal Exchange Insurance Company, 4 Campb.  [**11]  248. Parkin vs. Tunno, 11 East, 22. The privilege of deviation is a limited one. It was for the jury to determine whether it was a discreet apprehension of the captain so as to induce him to deviate from the direct voyage; and that if it was necessary for him to deviate, whether he did go to the nearest port to obtain the information required. Oliver vs. Maryland Insurance Company, 7 Cranch, 493. Phillips on Ins. 192, 193. 1 Marsh. 195, 204. Park, 264. The deviation must be for the benefit of the parties concerned. 1 Marsh. 205. Phill. on Ins. 235. Richardson vs. Maine Insurance Company, 6 Mass. Rep. 121. Smith vs. Universal Insurance Company, 6 Wheat. 176. Polk vs. Fitzgerald, Willes, 641. In March 1822 the independence of Colombia was recognized by the government of the U. S. 22 Niles's Reg. 147. The U. S. recognized the existence of a civil war in that country. The Santissima Trinidad, 7 Wheat. 337. United States vs. Palmer, 3 Wheat. 610. The Divina Pastora, 4 Wheat. 52.

Purviance, on the same side. Until the mother country acknowledges the independence of its province, it remains as a part of the mother country, no matter whether there be a war carried on between them or not.  [**12]  Trade with such province, if permitted by the mother country, must be carried on as if it were not an independent country; but if the intercourse is interdicted by the mother country, then a trade with the colony would be an illicit one. There is a distinction between a warranty, and a violation from necessity of any part of the policy containing a mere statement. The warranty ties up the insured to a performance to its letter. 1 Marsh 346, 349. If the warranty is violated, the policy is at an end. In the case of a deviation if the danger consists of being captured on entering a port, it would be allowed if there was no warranty. If to avoid the peril is for the benefit of all the parties, it is allowable. But if it proceeds from a peril not insured against, though it be a matter of prudence for the benefit of the insured, yet the assurer is not answerable in case of a loss. The violation of the laws of the country of the assured and assurer absolves the insurance; but the violation of the laws of a foreign country does not vitiate the policy. Livingston & Gilchrist vs. Maryland Insurance Company, 7 Cranch, 540. Rose vs. Himely, 4 Cranch, 272. Gelston vs. Hoyt, 3 Wheat. 324. United [**13]  States vs. Palmer, Ibid 634. The prayer to the court in the bill of exceptions was grounded on a part only of the evidence. What difference was it whether St. Martha was in possession of the Royalists or of the Patriots? There might be a difference if the Royalists would pursue the same line of conduct which they had pursued on a former occasion, but that, by the form of the prayer, was thrown out of the view of the jury.

Mitchell, in reply, referred to Phill. on Ins. 191, 192, 193, 195, 196, 228, 148, 149, 150, 8, 276, 277, 296, 234, 293, 294, 216, 223. Stocker vs. Harris, 3 Mass. Rep. 417. Lee vs. Gray, 7 Mass. Rep. 349. Schmidt vs. United Insurance Company, 1 Johns. Rep. 262. 1 Marsh. 207, 346, 270. 4 Wheat. (Appendix, note 2.) United States vs. Palmer, 3 Wheat. 610. The Santissima Trinidad, 7 Wheat. 337. Oliver vs. Maryland Insurance Company, 7 Cranch, 494, 495, 496. Vattel, B 3, ch. 18, s. 295, 296, page 426, 427. 2 Phill. Evid. 60, (note.) 1 Marsh. 346, (note 55,) 78, (note 2.) Earle vs. Rowcroft, 8 East, 126. Vasse vs. Ball, 2 Dall. 274. Church vs. Hubbart, 2 Cranch, 187, 232, 234. Bird vs. Appleton, 8 T. R. 562. The Schooner Rapid, 1 Gall. Rep. 303. Scott vs. Thompson,  [**14]  4 Bos. & Pull. 181. Reade & Jephson vs. Commercial Insurance Company, 3 Johns. Rep. 352. The Ship Argo, 1 Gall. Rep. 157. O'Reilly vs. The Royal Exchange Ins. Co. 4 Camp. 248; and Johnston vs. Ludlow, 1 Caine's Cas. Appen. XXIX.  

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

OPINIONBY:
DORSEY 

OPINION:

 [*287]  DORSEY, J. delivered the opinion of the Court. The right to the appellants to recover in this action, seems to have been resisted in the court below, simply on the ground that the sailing of the schooner Two Brothers from St. Barts, to Marguarita, under the circumstances of the case, was a deviation by which the underwriters were discharged from all liability on the policy. But the appellees here contend, that the judgment rendered is correct for various reasons. First. They insist that every deviation to avoid a peril not insured against absolves the assurers. To examine this point independently of decisions on the subject, the court think it stands relieved from all difficulty or doubt. In construing a policy of insurance, the court should give it a fair and liberal interpretation, such as, under all [**15]  the circumstances of the case, appears most consonant to the intention of the parties at the time the contract was formed. The design of the assured, being to provide for themselves an indemnity against loss, from which the insurers engage to protect them, such a construction should be placed on their compact as, according to the understanding of the parties and nature of the transaction, will effectuate that object. Mercantile negotiations should never depend on subtleties and niceties, but upon rules founded on common sense and justice, a knowledge of which would therefore be readily acquired by the community at large. Policies of insurance may be considered either as universal, embracing all manner of risks, or special, being confined to one or more specified perils. On the latter description of policies only, can the question now under consideration ever arise. As to all risks, not insured against, the owner becomes his own underwriter; when an insurer assumes a responsibility for all losses, for example, arising from sea risks only, can it be presumed to be the understanding or agreement of the parties to the policy, that the insured relinquished all right to escape capture from [**16]  pirates, or elude other imminent peril, by flying 

 [*288]  for protection to a neighboring port out of the usual course of the voyage? If such be the operation of a contract of insurance, not universal, instead of providing for the insured an indemnity against loss, it serves but to paralyze his efforts for the safety of his property, and to impose on him new duties and restrictions which enhance his dangers. "A deviation is a voluntary departure, without necessity or reasonable cause, from the regular and usual course of the voyage." How can that digression from the course of the voyage be said to be "without necessity or reasonable cause," which is made to avoid an imminent peril of capture, or other disaster necessarily resulting in the entire loss of the subject matter of insurance? If not, then such a departure being no deviation, is justifiable, and impairs not the liabilities of the underwriters. Suppose the common case of a general ship, where the cargo is owned by many different persons, each of whom insure against separate risks; upon the occurrence of a peril, insured against by any one owner, the captain becomes the joint agent of such owner and his underwriter, and [**17]  is in duty bound to avoid the danger even by a digression from the course of the voyage; and yet in such a case, if the doctrine contended for be correct, all the underwriters, upon other parts of the cargo, would be absolved from their engagements--In manifest violation of the intentions of all the parties, and contrary to every idea of common sense and justice. The court think that the insurer must be presumed to be acquainted with the usages and accidents to which the property insured may be subjected in the course of the voyage; that they are contemplated by him at the time of his contract, enter into and become a part of it; and that although he is only answerable for losses flowing immediately from the perils against which he insures, yet that viewing the captain as the agent of the owner, he tacitly assents to all reasonable efforts, which he may make for the safety of the property insured, and its transportation to the port of destination; and consequently authorizes the usual means of avoiding urgent danger, whether it be from a peril insured against or not.
This being the view which we have taken of this point in the cause, independently of all adjudications on the subject,  [**18]  let us examine how far they should prompt us to a change of opinion. 

 [*289]  Between cases of physical and moral necessity as justifications for departure from the course of the voyage, the books make no distinction, and in reason and on principle there is none. In support of the principle for which they contend, the counsel for the appellees have referred to three cases; one of which is Breed & others vs. Eaton, 10 Mass. 21. The policy was signed at Boston, in December 1810, on a voyage from Liverpool to Savannah; the vessel arrived off the port of destination on the 25th of February 1811, but being informed of the non-intercourse law passed by the congress of the United States, the captain, afraid to enter, and apprehending seizure and confiscation, to avoid it sailed to Amelia Island, to wait until he might lawfully return to Savannah. The underwriters being sued on this policy for a subsequent loss, their counsel insisted that they were discharged by the deviation, in going to Amelia Island, to avoid a risk not covered by the contract of insurance; and also that the policy became void in consequence of the non-intercourse law of [**19]  the United States; "and of this opinion, (says the reporter,) were the court." Of what opinion? Whether that the deviation avoided the policy, or that it became void under the non-intercourse law of the United States, we are left to conjecture. But from the manner in which the last position was presented to the court, being deemed too plain to require either argument or authority to support it, and from the promptness and brevity with which their judgment was announced as soon as the last point in the cause was started, it affords a very strong presumption, that upon that only did they bottom their decision. It was not the habit of that enlightened tribunal to decide in a way so summary and laconic, so grave and important a question as that discussed on the principle of deviation, and on which contradictory determinations had taken place. We are aware, however, that in Phillips on Insurance, 211, this case is classed as though it turned on the point of deviation. The other two cases are Roget vs. Thurston, 2 Johns. Cas. 248, and O'Reilly vs. The Royal Assurance Company, 4 Camp. N.P. 246, both of which do sanction this novel and technical [**20]  distinction relied on by the appellees. But Roget vs. Thurston is in fact overruled by a subsequent decision of the same tribunal, 

 [*290]  in which Chief Justice Kent, with Judges Tompkins, Spencer and Thompson, concurring, decides, that "a deviation from necessity will excuse the assured, in case of an assurance against any particular risk, as well as in case of a general insurance. There is not probably any exception, to be met with, to the application of the general principle, that if the vessel departs from the usual course of the voyage from necessity, and departs no further than that necessity requires, the voyage will still be protected by the policy." Vide Robinson and Robinson vs. The Marine Insurance Company of New York, 2 Johns. 89. In this case, the insurance being against "sea risks only," and a digression quia timet a peril not insured against, the court adjudged it no deviation. The appellees then can only sustain their position by the single nisi prius decision of Chief Justice Gibbs, in 4 Campbell, in opposition to which is the positive decision of Lord Kenyon in Green vs. Elmslie, Peake N.P. 212, which is [**21]  approved of and adopted by Lord Ellenborough in Livie vs. Janson, 12 East 653; and the deliberate opinion of the court of common pleas, delivered by Chief Justice Mansfield, after full argument, in Scott vs. Thompson, 4 Bos. & P. 181. In Marshall on Insurance, 204, it is stated, that "necessity will justify a deviation though it proceed from a cause not insured against." And the same principle is supported by Phillips on Insurance, 214. The weight of authorities, this court conceive, is decidedly in favour of the views they have taken of the case at bar; and in all questions of this nature we apprehend the doctrine laid down in Stocker, et al. vs. Harris, 3 Mass. 409, stands free from objection, that "the captain is the common agent of the concerned, and it is his duty to manage their distinct and separate, as well as their joint interests, according to his best judgment; and whatever is fairly done with this purpose, is within the course of the voyage; and delays, occasioned by such events, are accidents to which the insurers are accidentally, if not directly subjected." "Fairly done," being understood to mean, done with good [**22]  intentions, and upon reasonable grounds. But admitting the law to be otherwise, there is nothing in the bill of exceptions to show that the peril sought to be avoided was one excepted out of the policy. It does not even appear that the Two Brothers 

 [*291]  had any cargo on board, or that there could have been the most remote cause or apprehension of danger, "by reason or on account of any illicit or prohibited trade, or trade in articles contraband of war."
The appellees' next object, that the appellants having prayed an hypothetical instruction from the court, that they were entitled to recover if the jury believed certain enumerated facts; the effect of granting such prayer would be, to withdraw from the hands of the jury, the finding of all other facts than those specified; and would in truth be a direction, that if the jury should find the facts enumerated to be true, although they might disbelieve every other fact on which testimony had been offered, yet that the plaintiffs are entitled to recover. If such would be the operation of the instruction prayed for, it surely cannot be contended, that its refusal is matter of error, as all evidence of peril, or apprehension [**23]  of peril, is excluded from the consideration of the jury, it not being one of the enumerated facts, on the finding of which their verdict is made exclusively to rest. The departure from the course of the voyage being then without apology or justification, the law affixes to it the character and consequences of deviation. Whether this be the true construction of the appellants' prayer, is not clear of doubt, and we deem it unnecessary to express any opinion on the subject.
The appellees also insist, that the testimony, offered in this cause, does not disclose any justification for the sailing of the schooner from St. Barts to Marguarita, and that on account of this deviation they are discharged from their policy. And in this we concur with them in opinion. In every contract of marine insurance the law imposes an obligation on the assured to provide a master of competent skill, prudence and discretion, to navigate the vessel; and if in a change of the course of the voyage a loss happen, which may be justly imputed to his not having provided a master of that character, the underwriters are not responsible. The mere apprehension of danger, unless founded on reasonable evidence,  [**24]  does not justify deviation. The court, and not the jury, are the judges whether the deviation be justifiable. Oliver vs. Maryland Insurance Company, 7 Cranch 487, 4, 5; and Patrick vs. Ludlow, 3 Johns. Cas. 10. The peril apprehended must be such, that if encountered, 

 [*292]  loss or serious injury is the necessary consequence. The danger must be imminent and obvious, not problematical or contingent. Apply these principles to the evidence offered in the case at bar. Upon their arrival at St. Barts, the captain and supercargo "are informed, and had good reason to apprehend, that St. Martha, which at the time of the sailing from Baltimore was in possession of the Patriots, had fallen into the hands of the Royalists, who had, by keeping the Patriot flag flying, decoyed vessels into port, and seized, detained and confiscated them." Do these facts constitute an "obvious" or "imminent" danger? Is it alleged that on such former occasion American, or neutral vessels, were decoyed into port, seized and confiscated? Not a word of the kind. And this court are not permitted by mere implication, in the absence of all proof, to impute [**25]  to the agents of a sovereign and christian nation such acts of lawless outrage and treacherous rapine. The hoisting of the Patriot flag by the captors of St. Martha can only be viewed as a ruse de guerre to operate on the vessels of the Patriots, not of neutrals. There appears, therefore, to have been no cause for the apprehension of such danger as would justify the sailing from St. Barts to Marguarita. Even suppose that neutral vessels had shared the same fate at St. Martha, on the occasion alluded to, with those of the Patriots; there is no evidence to show, that the recaptor of St. Martha was the same perfidious Royalist robber, into whose hands it had formerly fallen. And there is a total absence of testimony on which to ground an inference, that a similar system of plunder had been practised in recaptured ports by other Royalist commanders. On these grounds the court below were right in refusing to grant the plaintiffs' prayer that they were entitled to recover.
Their opinion, it is apprehended, may be supported on another ground. "The circumstance that a deviation takes place through the mistake or negligence of the captain, does not [**26]  prevent its discharging the underwriters, since his mistakes and negligence are at the risk of the assured." See Phil. Ins. 223, and Phyn and others vs. The Royal Exchange Insurance Co. 7 T. R. 501. The captain is bound to know, as far as the ordinary means of information can afford such knowledge, the various 

 [*293]  ports in the course of his voyage, as well as regards their locality, as the general nature of their trade, and the relief and assistance he may expect to obtain, should he be compelled to visit them on account of any emergency arising in the prosecution of the voyage. A failure, on the part of the captain, to possess such information, is a violation of the implied engagement always imposed on the assured, that the vessels, in relation to which the insurance may be effected, is navigated by an officer of competent skill and judgment for the performance of the voyage. According to the testimony offered by the defendants, Curracoa is in the direct route of the voyage from St. Barts to St. Martha; is an open port, free for the reception of Spanish and Colombian vessels of war, and for the vessels of all other nations, and that constant [**27]  intercourse is kept up between Curracoa and St. Martha; and that information, in relation to the last mentioned port, would be heard at Curracoa, in the course of three or four days, that being the usual length of the voyage between those places; and that Curracoa was resorted to by neutrals for intelligence as to the state of the Spanish Main. That Curracoa is a place of deposit or entrepot for large quantities of merchandize which are intended to be carried to the different ports on the Spanish Main, and which are from time to time placed there and removed according to the state of the market, and the situation of the ports on the Main, whether in possession of the Royalists or Independents; and that these facts, in relation to Curracoa, were well known in Baltimore, previous to and at the time of the sailing of said vessel on the voyage insured; and that it was well known at St. Barts that Curracoa was the nearest place to St. Martha, where correct information was at all times to be obtained of the state and condition of the government of St. Martha. That Marguarita is six hundred miles from St. Martha, [**28]  whilst Curracoa is but three hundred; and that Marguarita is by one third more distant from St. Barts than Curracoa. That Marguarita is much out of the usual track of a voyage from St. Barts to St. Martha, and was never pursued by a vessel having St. Martha in view as her port of immediate destination. In justification of the conduct of the captain, without proving that Marguarita was a port of 

 [*294]  more convenient access than Curracoa, was likely to possess the means of giving the information sought for, or for a like purpose was ever visited by any vessel on any voyage, it is proved, that the captain, "learning at St. Barts that Marguarita, a West India island, was the best and safest port or place at which to acquire information relative to the situation of St. Martha, proceeded there." How, or from what source the captain gained this intelligence does not appear. Of the facts detailed in relation to Curracoa he was bound to have had knowledge. If so, can it be doubted, that it was his duty to have sought the intelligence he desired at the port of Curracoa, the nearest and most convenient port, and that by proceeding [**29]  to Marguarita, he committed a deviation which discharged the underwriters.
But the court were justified on another ground in refusing the plaintiffs' prayer. They could only grant it, provided that from the whole testimony offered in the case, the jury were warranted in finding the facts specially enumerated therein, and all other facts necessary to support the action; notwithstanding it be admitted that all the evidence offered by the defendants is true, (except so far as the same may be contradicted by the finding of the specific facts contained in the prayer,) no matter how strong may be the contradictory testimony produced by the plaintiffs. Upon any other principle the court would have transcended the limits prescribed to their powers, and invaded the undeniable and exclusive prerogative of the jury, viz. the right of deciding on all matters of fact, as to which contradictory evidence may be adduced. What is the instruction prayed? That the court direct the jury, "that if they should believe, that upon the arrival of the vessel insured, at St. Barts, it was generally reported that St. Martha was in possession of the Royalists, and that the master and supercargo [**30]  were informed at St. Barts, and verily believed, that Marguarita was the best and nearest place to obtain information relative to the situation of St. Martha, and that the master of said vessel, in the exercise of an honest and sound discretion, went to Marguarita for information, that proceeding thereto was no deviation, and that the plaintiffs were entitled to recover for a total loss." How could the court authorize the jury to find the 

 [*295]  fact, that Marguarita was the nearest port to obtain information relative to the situation of St. Martha, without one particle of testimony, on the part of the plaintiffs, to establish that fact; and in opposition to its conclusive refutation by positive proof adduced by the defendants. We conceive it to be the peculiar duty of courts of original jurisdiction, imposed on them for the wisest and best purposes, when applied to, in cases where either no testimony is offered of a fact, or the proof is so vague and indefinite, that by no rational inference can the fact attempted to be proved be deduced, to instruct the jury, that from the testimony offered, it is not competent for them to find such fact. The inconsistency [**31]  of the court, therefore, would have been most conspicuous, had they by express instruction encouraged the jury to find Marguarita the nearest port, not only without proof, but against that of the most clear and unequivocal character.
The court were right in rejecting the prayer for another reason. The facts being admitted, the question of deviation is a matter of law for the decision of the court. Considering, then, the testimony in the cause in the way in which it is before stated, the court were bound to receive it in reference to this prayer. Is it possible that any court of judicature, (let the intentions of the captain have been never so honest,) would instruct a jury, that under the circumstances of this case, whilst impelled by no imminent peril, but proceeding merely to enquire into the truth of a public rumor, they were authorized to find, that in going to Marguarita, instead of Curracoa, he acted in the exercise of "a sound discretion?" We think not. His conduct must be imputed to that gross ignorance and want of judgment, which discharges the underwriters.
Much stress was laid, in the argument, on the statement in the bill of exceptions, that the plaintiffs [**32]  "proved" such and such facts. We receive it as meaning nothing more, than that he offered evidence thereof.
BUCHANAN, Ch. J. dissented.
JUDGMENT AFFIRMED.  

11 of 33 DOCUMENTS 

EICHELBERGER vs. FINLEY & VAN LEAR.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

7 H. & J. 381; 1826 Md. LEXIS 45 

June, 1826, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court. This was an action of assumpsit, brought by the appellees against the appellant and W. Eichelberger, (who was returned non est,) for work and labour, goods, wares and merchandise, for money lent and advanced, and paid, laid out and expended, and on an insimul computassent. The general issue was pleaded. The plaintiffs at the trial offered to read in evidence the two following checks, drawn by the defendants--"No. 613. Baltimore, March 26th 1819. Cashier of the Commercial and Farmers' Bank. Pay to M. E. or bearer, fourteen hundred and fifty dollars. 1450 dollars. J. & W. Eichelberger." "No. 619. Baltimore, March 26th, 1819. Cashier of the Commercial and Farmers' Bank. Pay to No. 619, or bearer, fifteen hundred dollars. 1500 dollars. J. & W. Eichelberger."

And also proved, that they, were the legal holders of the same. That the checks were presented for payment at the Commercial and Farmers' Bank, upon which they were drawn, on the third of June, subsequent to the date of the same. The defendants then gave in evidence, by Mr. Dunbar, the Cashier of said bank, that on the day of the date of said checks, the defendants had funds in said bank to [**2]  the amount of $ 500; on the day following, to the amount of $ 400; and for several days subsequent, had from two to four hundred dollars of funds in said bank. They also proved that no notice was given to the defendants of the nonpayment of the checks, until the 3d of June 1819, the day on which they were presented, as stated in the plaintiff's evidence, for payment. And they also proved by the same witness, that the defendants were indebted on a stock transaction, to the said bank, in more than the amount they had then in bank; and in May 1819, the funds which the defendants then had in bank, were appropriated by the bank to the payment of said debt. The plaintiffs then further gave in evidence, that it was the general usage of the banks in Baltimore not to pay checks, unless the party drawing them had funds sufficient to meet the same; but that sometimes the cashier paid them for a small amount, when there were not funds sufficient to meet them. And it was admitted that said bank, during the whole period from the date of said checks, to the present time, was solvent. The defendant then moved the court to instruct the jury, that upon the whole of the evidence the plaintiffs were not [**3]  entitled to recover; which instruction the Court, [Archer, Ch. J.] refused to give. The defendant excepted; and the verdict and judgment being against him, he appealed to this court.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

Notice of nonacceptance of a bill of discharge, is not necessary where the drawer, at the time when presentment should be made, has no effects in the hands of the drawee, or having such effects, withdraws them before presentment is made, and has no reasonable grounds to expect his bill to be honoured.

In relation to notice in such a case, there is no distinction between a refusal to accept, and a refusal to pay, the same principles apply to both.

A party who draws a check upon a bank, without funds in the bank to meet it, is not entitled to notice of nonpayment, nor is he discharged by the holder's not presenting it within reasonable time.

Between individuals there may be a mutual confidence and credit, and they may honour each other's bills with or without effects, so as perhaps to entitle them to notice, though they have no effects; but no such confidence or credit can exist between a bank, and its customers; and the officers of a bank cannot, without a gross violation of their trust, honour a check or draft beyond the amount of the drawer's deposits. 

COUNSEL:
R. Johnson, for the Appellant, contended, 1. That the neglect of the appellees to present the checks at the bank, upon which they were drawn for payment, within a reasonable time, and the neglect to give notice of their nonpayment by the bank, within a reasonable time, to the appellant, (the drawer of the checks) entitled the appellant to the direction and opinion he prayed in the court below. 2. That the presentation and notice on the 3d of June 1819, were not made within a reasonable time; and that the want of sufficient funds, as set forth in the bill of exceptions, was not in law an excuse for the neglect to make such presentment, and give such notice within a reasonable time.

On the first point, he cited Chitty on Bills, 24, 280, 282; and Rickford vs. Ridge, 2 Campb. 537.

On the second point, he cited Bickerdike vs. Bolman, 1 T. R. 405. Walwyn vs. St. Quintin, 1 Bos. & Pull. 654. Legge vs. Thorpe, 12 East, 175. Clegg vs. Cotton, 3 Bos. & Pull. 241. Thackray vs.  [**4]  Blackett, 3 Campb. 144. Blackhan vs. Doren, 2 Campb. 503. Chitty on Bills, 215 to 223. Orr vs. Maginnis, 7 East, 359. Dennis vs. Morris, 3 Esp. Rep. 158; and Clopper vs. The Union Bank of Maryland, (ante 92.)

Gill, for the Appellees, cited Chitty on Bills, 318, 319, (London Ed.) Brown vs. Maffey, 15 East, 221. Cruger vs. Armstrong, 3 Johns. Gas. 259; and Cory vs. Scott, 5 Serg. & Low. 401.  

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

OPINIONBY:
DORSEY 

OPINION:

 [*384]  DORSEY, J. delivered the opinion of the Court. Were the appellees, under all the circumstances of this case, bound to use reasonable diligence in demanding payment, and in giving notice to the defendant of the dishonor of his checks, are the only questions submitted to the consideration of the court. It is not pretended that a failure to do so has subjected him to loss or inconvenience.
"The reason," (says Chitty, in his Treatise on Bills of Exchange,) "why the law requires the holder to give due notice of nonacceptance by the drawee is, that the anterior parties to the bill may respectively take the necessary measures to obtain payment from the parties respectively liable to them; and [**5]  if notice be not given, it is a presumption of law that the drawer and endorsers are prejudiced by the omission." The requisition of notice of nonpayment rests on precisely the same principle.
On this simple and once universal rule an innovation was made by the decision in Bickerdike vs. Bollman, 1 Term. R. 405, which, with the most of the distinguished judges in England since that period, has been a theme of regret; and in their zeal to limit the operation of the exception there introduced, within the smallest practicable compass, they have explained and frittered it away, until there is but little of it left; and the reasons upon which, in their decisions, they have made that little to depend, are so various, inconsistent, and unsatisfactory, that it is a task of no inconsiderable difficulty to extract from them any certain rule of law, by which this class of cases may be readily distinguished. The rule Justice Buller professed to establish in Bickerdike vs. Bollman was, that notice to the drawer was not necessary, "if it be proved on the part of the plaintiff that from the time the bill was drawn, till the time it became due, the drawee never had any [**6]  effects of the drawer in his hands." The reason of the rule, as there stated by the learned judge, was that the drawer could not be injured by the want of notice. In Clegg and another vs. Cotton, 3 Bos. & P. 239, the rule dispensing with notice is stated to be founded on the fraud of the drawer in drawing without effects; and the same position is also advanced by Justice Ashhurst, in Bickerdike vs. Bollman. But the fallacy of this doctrine, (if authority be necessary 

 [*385]  to show it,) is fully established by cases of Legge vs. Thorpe, 12 East 170, and Claridge vs. Dalton, 4 Maule & Selwyn 226, where the conduct of the defendants is free from the slightest imputation of fraud. The true rationale of the rule introduced in Bickerdike vs. Bollman, is that given by Justice Buller, "that the drawer could not be injured by the want of notice." Why not injured by the want of notice? Because the object of notice is to let the drawer know that his bill has been dishonored, and this he already knew from the nature of the circumstances connected with it. To require a party to be notified of a fact of which he has already a perfect knowledge,  [**7]  does appear to be a solecism not at all in harmony with that beautiful system of reasoning and good sense, which pervades every branch of legal science. The many distinguished judges who have disapproved of this rule, in expressing their regrets at its introduction, correctly state it to be "the substitution of knowledge for notice," and yet when called upon to apply the principle to the facts in each particular case, such has been the anxiety to limit the extent of its application; such the desire to ingraft upon it restrictions and discriminations, by which future cases may evade its operation, that in subtleties and refinements the essence and meaning of the rule has been almost wholly lost sight of. Of this the case of Orr and others vs. Maginnis, 7 East, 359, is a memorable illustration. There, a captain in the African trade in January 1802, in Demerara, drew a bill of exchange upon Messrs. Mullian, Lennox and Co. of Liverpool, for £  172 18 1, payable at 90 days sight to the plaintiffs, or order, at which time the drawer had effects, (but to what amount does not appear,) in the hands of the drawees, but in May 1802, his whole balance, amounting to [**8]  the sum of £  116, was paid to him by them, they having no notice of this bill; and from July 1802, when it was presented for acceptance, up to the 22d of October 1802, when it was presented for payment and refused, the drawees had no effects of the drawer in their hands. No notice of nonacceptance was given to the drawer, he not being then to be found, having no settled place of residence, and for want of such notice the plaintiffs were nonsuit at the trial. A motion for a new trial was overruled by the Court of King's Bench, and Lord 

 [*386]  Ellenborough, in delivering their opinion, bottoms the refusal on the ground that the drawer had effects in the hands of the drawees at the time the bill was drawn. If a case can be imagined in which a want of effects, with a knowledge in the drawer that his bill would be dishonored, dispenses with notice, it might well be supposed that this was that case. It does not appear that the drawer, at the time the bill was drawn, before or subsequently, ever had credit with the drawees for one farthing more than to the amount of the effects in hand. Having then withdrawn the only fund which could sustain the honour of his bill, did he not [**9]  know by anticipation the fact of its nonacceptance? The knowledge of the drawer, which is deemed a substitute for notice, does not depend upon that state of things which exists at the time the bill is drawn, but which exists at the time it should be presented. It matters not, therefore, whether the drawer have effects with the drawee when the bill is drawn, or not, nor whether he then have any reasonable grounds to expect that his draft will be accepted. Even if the drawer, contemplating a fraud, should at the time of drawing have no effects in the drawee's hands, and should not expect to have any at any period thereafter, or that his bill would be honoured; yet, if before presentment, repenting of his conduct, he should place adequate funds with the drawee, can it be doubted that he would be entitled to notice? And e converso, if a drawer having ample effects in the drawee's hands at the time of drawing and confidently expecting that his bill would be honoured, should before presentment fraudulently withdraw them from the drawee, abandoning all expectation of the honour of his bill, can it be denied that he would not be entitled to notice? And why? Because the knowledge, which [**10]  is imputed to him, is that which he possessed at the time of presentment, not of drawing. Upon reasoning and on principle, therefore, the true rule applicable to cases of this kind appears to be, that notice is dispensed with where the drawer, at the time when presentment should be made, had no effects in the hands of the drawee, or having such effects should withdraw them before presentment is made, and in neither case should have any reasonable grounds to expect that his bill would be honoured.
It must be admitted that the doctrine here advanced is somewhat 

 [*387]  at variance with the opinion of the supreme court of the United States, delivered by Chief Justice Marshall in French's Ex'x. vs. The Bank of Columbia, 4 Cranch 141, in which it is stated that it cannot be said "that actual notice is useless, and the want of it can do him (the drawer,) no injury, for this is only true when at the time of drawing the drawer has no reason to expect that his bill will be paid.
This case has been treated as if it had arisen on a refusal to accept, when in truth it arises on a refusal to pay; but as far as concerns the matters here in controversy, the principles [**11]  regulating both cases cannot be distinguished.
The same rule having been adopted in practice in this state, and sanctioned by courts of justice, as that recognized in Bickerdike vs. Bollman--under the circumstances of this case, is such knowledge of the nonpayment of his checks to be imputed to the appellee, as supersedes the necessity of actual notice? On this subject the court, looking as they must do only to the facts in the record, entertain not the shadow of a doubt that he knew, when he drew the checks, that they would be dishonored, and never at any subsequent period had reason to expect that they would be paid by the bank, and cannot therefore set up as a defence the want of notice. The cases of Orr and others vs. Maginnis, 7 East, 359, and Thackray vs. Blackett, 3 Camp. 164, have been urged by his counsel as conclusive in his favour. But it is conceived, that waiving all exceptions to the soundness of those decisions, they bear no application to the case now under consideration. They were made on transaction between individual correspondents who may have had a mutual confidence and credit, and were perfectly competent to honour each other's bills [**12]  drawn either with or without effects. Not so as to the officers of the public banking institutions in this state. With them the customers of the bank have no accommodation credit, and without a gross violation of their trust, they can honour no check or draft upon them, beyond the amount of deposits standing to the credit of him by whom such check or draft may be drawn.
It has been objected, that the failure to present the checks for payment within a reasonable time, has discharged the drawers. But there is nothing in this objection. If demand had 

 [*388]  been duly made, and payment refused, he was not entitled to notice thereof. It was an act, therefore, the omission or performance of which, as to him, was wholly immaterial.
JUDGMENT AFFIRMED.  

12 of 33 DOCUMENTS 

GIST'S Adm'r. D. B. N. cum. test. an. vs. COCKEY & FENDALL.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

7 H. & J. 134; 1826 Md. LEXIS 24 

June, 1826, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court. Assumpsit, brought by the appellees against the appellant. The facts of the case, as set forth in the bills of exceptions taken at the trial by the defendant below, are sufficiently stated by the Judge who delivered the opinion of this Court.  

DISPOSITION:
JUDGMENT REVERSED.  

HEADNOTES:

Where an action is brought against an executor or original administrator, and pending it he dies, the administrator de bonis non may, under the act of 1785, ch. 80, be made a party.

Accounts settled by executors or administrators in the orphans court, are prima facie evidence to shew the situation of the personal estate of the deceased, in all controversies between the executor or administrator and the representatives of the deceased, and in actions by creditors against the heirs or devisees of the deceased, and to warrant a sale of the real estate by decree of the court of chancery. But such accounts are not evidence at all of over payments by executors or administrators, or that the claims stated in them were debts justly due by the deceased, and chargeable upon his real assets, either at law or in equity.

If after exhausting the personal assets, an executor or administrator does pay debts of the deceased out of his own funds, he has a right only to be substituted in the place of the creditors, and must establish his claim by the same kind of testimony which would be demanded of them.

A simple contract creditor of a deceased, cannot in this state charge his devisee solely on the ground that real assets have come to his hands.

And where a devisee expressly promises to pay such a debt, the promise is nudum pactum, unless real assets have come into his hands; and where assets have come, such a creditor can only recover in an action against the devisee, by proving the debt, and proving the value of the assets.

Unless bills of exceptions refer to each other they are to be considered as wholly distinct.  

COUNSEL:
Heath and R. Johnson, for the Appellant. 1. On the first bill of exceptions, they contended, that the accounts of an executor or administrator, settled by him with the orphans court, are not evidence for him to prove that the estate was overpaid, so as to charge a legatee or devisee with the amount so overpaid.

2. On the second bill of exceptions they contended--1. That the declaration made by P. D. Gist, in her lifetime, that she was indebted to Fendall, (one of the plaintiffs below,) on account of her brother, T. D. Cockey's estate, and that she was endeavouring to raise money to pay it, &c. was not an acknowledgment or promise to pay him, and not sufficient to support this action. 2. That such a declaration, where no sum of money is mentioned, cannot amount to, or be considered as, a binding promise. 3. That if it was a promise to Fendall it did not authorise the plaintiffs [**2]  to maintain the action, it not being proved that they were partners. 4. That no such action as this can be maintained against a devisee, without a previous request, and an express promise to pay. This was a voluntary payment made by the plaintiffs. 5. That there was nothing in this second bill of exceptions which can connect it with the first.

3. They also contended, that the executor of P. D. Gist, having died pending the action against him, her administrator de bonis non could not legally be made a party to it.

On the first bill of exceptions, they referred to the act of 1798, ch. 101, sub ch. 8, s. 10, 13, 15, 16; and Carnan vs. Turner, 6 Harr. & Johns. 65.

On the third point in the second bill of exceptions, they cited Graham vs. Robertson, 2 T. R. 282. Osborne vs. Harper, 5 East, 226. Brand vs. Boulcott, 3 Bos. & Pull. 235. On the fourth point--Child vs. Morley, 8 T. R. 613. Wilson vs. Knubley, 7 East, 134. On the fifth point--1 Bac. Ab. 528.

As to the right to make the administrator de bonis non a party, they referred to the acts of 1785, ch. 80, s. 1, and 1798, ch. 101, sub ch. 14, s. 4.

Scott and Taney, for the Appellees. 1. An action of assumpsit may [**3]  be maintained in the names of two persons, without showing them to be partners. Richardson's adm'x. vs. Stansbury, 4 Harr. & Johns. 275.

2. The administrator de bonis non may be made a party, where the executor of the defendant dies pending the action against him. Acts of 1785, ch. 80, s. 1; 1798, ch. 101, sub ch. 14, s. 4; and 1815, ch. 149, s. 4. 6 Bac Ab. tit. Statute, (4) 383, 389.

3. An action of assumpsit may be sustained against a legatee or devisee, without showing a previous request, and promise to pay. 1 Com. Dig. 187, 195, 196, 200.

4. The assumpsit by P. D. Gist will enable the plaintiffs to support this action, Ott. vs. Chapline, 3 Harr. & M'Hen. 323. Carnan vs. Turner, 6 Harr. & Johns. 65. 1 Harr. Ent. 369.

5. The accounts settled in the orphans court by an executor or administrator, showing that he had overpaid the estate, are sufficient evidence to charge the devisee. Scott vs. Dorsey, 1 Harr. & Johns. 232.  

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

OPINIONBY:
DORSEY 

OPINION:

 [*136]  DORSEY, J. delivered the opinion of the Court. This was an action of general indebitatus assumpsit, (on promises [**4]  made by Penelope D. Gist in her lifetime,) for money paid, laid out and expended, money lent and advanced, and money had and received, instituted by Ann Cockey and Edward Fendall, the appellees, against Joshua F. Cockey, executor of Penelope 

 [*137]  D. Gist. The executor dying pending the suit, Joshua F. Cockey, (the appellant,) obtained letters de bonis non on P. D. Gist's estate, and was made a defendant in the usual way. He pleaded non assumpsit, and the act of limitations; and the judgment of the court below was rendered against him.
Two bills of exceptions were taken at the trial; the first, stating that the plaintiffs offered in evidence to the jury, that on the 20th of May 1811, a certain Thomas Deye Cockey, of Baltimore county, deceased, being then seized and possessed of a large and valuable real estate, by his last will and testament, duly executed, devised the whole of his real estate to the said Penelope Deye Gist, and appointed her, and her husband, executor and executrix of his said last will, and died, leaving his will unrevoked, which was proved according to law. That said husband and wife refusing to take [**5]  out letters testamentary, administration was granted by the orphans court of Baltimore county, in due form, to the appellees, who assumed upon themselves the burden thereof. That Thomas Gist, the husband of Penelope, departed this life soon after the death of Thomas D. Cockey, "and that the said Penelope D. Gist took possession of, and sold a part of the real estate, so devised to her as aforesaid; and that the proceeds of the said real estate, so sold, were paid over by the said Penelope D. Gist to the plaintiffs, and by them expended in the payment of the debts of their testator." That the plaintiffs further offered in evidence their accounts, settled as administrators aforesaid with the orphans court of Baltimore county, to prove that they had paid debts due by the deceased Thomas D. Cockey, to an amount, exceeding the estate which came to their hands, by the sum of $ 1,230 14; for the recovery of which this action was prosecuted. To the admission of which evidence the defendant by his counsel objected; but the court overruled the objection, and permitted the testimony to go to the jury.
The second bill of exception states, that "the plaintiffs,  [**6]  in order to support the issue on their part, and prove the promises laid in the declaration, gave in evidence to the jury, by Anderson Warfield, a witness produced, that he applied to Mrs. Penelope D. Gist to purchase a piece of land in Anne-Arundel county, devised to her by the said Thomas D. Cockey; she 

 [*138]  referred him to Edward Fendall, and said she would be bound by any bargain he might make. That he accordingly bargained with said Fendall, and afterwards paid a part of said purchase money to said Penelope, and obtained a deed, and gave her his note for the balance; and afterwards paid a part of that note to William M'Mechen, and a part to said Edward Fendall. And offered in evidence by Mrs. Norman, that a short time before the death of said Penelope, witness asked her to make a present to her niece Miss Cockey; she said she was indebted to Edward Fendall on account of her brother Thomas D. Cockey's estate, and she was endeavouring to raise money to pay it; and as soon as it was paid she would make a present to Miss Cockey. Whereupon the defendant, by his counsel, moved the court to direct the jury, that upon [**7]  the evidence so given, the plaintiffs are not entitled to recover in this action." Which direction the court refused to give.
Many grounds, in the progress of the argument, have been urged by the defendant's counsel for the reversal of this judgment. And first, it is contended that the proceedings in the court below are erroneous, and the suit abated for want of a proper defendant to the action, there being, as is alleged, no provision of law warranting the appearance of an administrator de bonis non, as a defendant to an action commenced against an executor or original administrator. The clause in the act of 1785, ch. 80, s. 1, on which this question arises, is this--"that no action brought, or to be brought, in any court of law in this state, shall abate by the death of either of the parties to such action; but upon the death of any defendant, in a case where the action by such death would have abated before this act, the action shall be continued, and the heir, devisee, executor or administrator, of the defendant, as the case may be, or other person interested on the part of the defendant, may appear to such action." The intention of the legislature is so clear,  [**8]  their command so positive, that no suit shall abate by the death of any defendant, but that the same shall be continued, and proper parties made "toties quoties," until a trial or judgment, that this court are bound to give, if necessary, the most extended and liberal construction to this legislative provision to effectuate its object. But the occasion demands not such an interpretation. 

 [*139]  The words, "or other person interested on the part of the defendant," most manifestly embrace this and all similar cases; and it is difficult to imagine for what other purpose that expression was introduced into the law. In this opinion the court have adopted the uniform construction given to this part of the act of assembly, from the time of its passage till the argument of this case. The judgment of the county court, therefore, stands unimpeached by this objection.
The next question arises on the first bill of exceptions. Were the accounts passed by the appellees with the orphans court, in the manner stated in that exception, admissible as evidence before the jury, for the purpose for which they were offered? We think they were not; no sufficient foundation being laid for such [**9]  a departure from the ordinary rules of evidence. Such accounts are always received as prima facie evidence, to shew that the whole personal estate has been, or has not been, exhausted in the due course of administration, in all controversies between executors, administrators, and the representatives of the deceased; and to the same extent are competent testimony in this and similar actions, by creditors, against the heirs or devisees of deceased persons, and to warrant a sale of real estate by decree of the court of chancery for the payment of debts; and consequently, to shew that an heir or devisee, by an express promise to pay, may be bound in an action of assumpsit by a creditor of the deceased. These accounts are not prima evidence, or any evidence at all, of overpayments made by executors or administrators, or that the claims stated in such accounts were debts justly due by the deceased, and chargeable upon his real assets, either at law or in equity. If the contrary principle were to prevail, heirs and devisees would be completely at the mercy of executors and administrators, who would, in fact, administer as well the real as the personal assets. By the rules of law [**10]  prescribed for the government of their conduct, they are only authorized and required to pay the debts of the deceased out of the personal estate; and if transcending the limits of their duty, they see fit to pay, with their own means, all they can reasonably ask or expect either upon principles of law or equity, is, that they be substituted to all the rights of the creditors whose demands they have liquidated. It hence necessarily 

 [*140]  follows, that such claims must be established against the heir or devisee, by the same kind of testimony which might be demanded of the original creditors themselves.
In considering the second bill of exceptions, it may not be amiss to advert to the character of the parties to the case before us. It is not an action of assumpsit, brought by a simple contract creditor of the deceased against the devisee, seeking to charge him, solely on the ground that real assets have come to his hands, if it were, the appellees must of necessity fail, as no such action can be sustained in this state. Preston vs. Preston, 1 H. & J. 366, and Lodge et al. vs. Murray's heir and devisee, 1 H. & J. 492. Nor is it such an [**11]  action, between such parties, founded on an express promise to pay by the devisee. But suppose it were, what must the plaintiff prove to entitle him to recover? In the first place his original debt or cause of action. The accounts from the orphans court, (the only evidence offered for that purpose,) being rejected by the court's opinion on the first bill of exceptions, the plaintiffs must be defeated on that ground. The plaintiffs in this action, if an express promise were proved, are in precisely the same condition with such a plaintiff.
Let us, however, concede that the plaintiffs' cause of action, as far as relates to the debt originally due, is fully established, and that the testimony offered in the first bill of exceptions be incorporated in the second, are the plaintiffs then in a condition to obtain a verdict? Assuredly not. Before the jury can find for the plaintiffs, it must be shewn that real assets came to the hands of Penelope D. Gist, with which she is under a legal or moral obligation to satisfy the debt sought to be recovered; otherwise the promise to pay is a nudum pactum, to be enforced neither at law nor in equity. The evidence as to such assets [**12]  is looked for in vain in the record. It is indeed, in proof, that Thomas D. Cockey was, when he executed his will, seized of a large real estate; but that he continued so until his death, or that the devisee was afterwards seized or possessed thereof, is no where alleged. The only evidence on this subject is, that she took possession of, and sold part of said real estate, and paid the proceeds thereof to the plaintiffs; and the statement of the purchase made by Anderson Warfield, who 

 [*141]  leaves us nothing by which we can even conjecture whether his purchase were to the amount of ten dollars, or ten thousand dollars. In the absence of all proof as to the quantum of real assets with which it was attempted to charge the defendant, the jury were incompetent to give a verdict for the plaintiffs.
In the view which has been taken of this case, the court have considered it as if the evidence offered in the first bill of exceptions were in grafted with that contained in the second, and that the prayer thereon was upon all the evidence offered in the cause. But they are not warranted in so doing. The bills of exceptions are destitute of the usual words of connection,  [**13]  and contain none of similar import by which they may be connected. It does not appear, with any thing like legal certainty, which exception was first tendered or signed. The court, therefore, can judicially only recognize them as separate and distinct bills of exceptions, wholly unconnected as to the facts they contain, and the prayers and the opinions predicated upon them. In this point of view the second bill of exceptions would present the case of a creditor of the deceased seeking to recover against a devisee in the absence of all evidence of an original debt, or that any amount of real assets ever came to his hands; and that recovery to be had too upon an inferential promise to pay, to be drawn from loose and inconclusive testimony.
The court dissent from the opinions given by the court below on both bills of exceptions.
JUDGMENT REVERSED.  

13 of 33 DOCUMENTS 

ELDER vs. WARFIELD.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

7 H. & J. 391; 1826 Md. LEXIS 47 

June, 1826, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court. Assumpsit. The defendant, (the now appellant,) pleaded the general issue. At the trial the plaintiff, (the appellee,) offered in evidence, by Alfred Warfield, the plaintiff's brother and clerk, that in the year 1817, the plaintiff was applied to by Joseph Berrett to furnish him with necessaries for his family, on credit; that the plaintiff, having doubts of Berrett's solvency, declined to do so, and refused to let him have the goods he applied for. That at this time the defendant lived on part of a farm belonging to Berrett's wife, in what character, whether as manager, overseer or trustee, he knew not. That subsequently the defendant called and requested the plaintiff, through the witness, to let Berrett have goods, &c. which he wanted, and told the plaintiff that Berrett was perfectly solvent, and did not owe more than $ 500, and was willing and able to pay his debts; that Berrett had recently sold property in Baltimore for a considerable sum of money, and the plaintiff should be paid out of it. The plaintiff still doubted, when the defendant told him to let Berrett have goods, and he would be responsible for the amount, and pay it out of the [**2]  proceeds of the said sale of Berrett's property, which he the defendant expected to receive. This agreement was not reduced to writing, or any memorandum made of it. The plaintiff in the years 1817, 1818 and 1819, let Berrett have various goods, wares and merchandize. The plaintiff further gave in evidence, by the same witness, that after the conversation aforesaid, between the plaintiff and defendant, Berrett upon his orders, obtained at different times, goods and merchandize to the amount of $ 523, being the same goods and merchandize for the recovery of whose value the action was brought. And further proved, by the witness, who during that time kept the plaintiff's books, that the said goods, as they were sold, were charged to Berrett, and that the whole account stands on the ledger of the plaintiff, headed "Mr. Joseph Berrett to Charles D. Warfield, Dr." with the words "assumption, or securityship, or guarantee, of John Elder," (the defendant.) The witness did not certainly remember which word, but believes it was "guarantee" written opposite, and he considered them synonymous. The plaintiff also proved by the same witness, that the account produced was frequently presented to [**3]  the defendant, who promised to pay, and that the signature Charles D. Warfield, to the receipt at the bottom of said account, was the plaintiff's. "Baltimore county, 27th March, 1819. Rec'd. of Mr. J. S. Berrett, a note for five hundred and twenty-three dollars, being for the above account, and a note of his for one hundred and fifty-seven dollars and three cents, which, when paid, will be in full. The note bearing date the 27th March, 1819, is payable at six months.     Chas. D. Warfield."

That the said account was also frequently presented to Berrett. The plaintiff further gave in evidence, that the note mentioned in said receipt for $ 523 given the plaintiff by Berrett and his wife, was taken at the defendant's request, and by his suggestion; and that after the said goods were furnished to Berrett, and before the said note was taken, and after it was taken, the defendant acknowledged himself to be answerable to the plaintiff for the said debt, and promised to pay it, but never gave any written acknowledgment or promise, or signed any memorandum in writing to that effect. The plaintiff further gave in evidence, that Berrett resided in Baltimore before his removal to the country,  [**4]  and in 1812 applied for the benefit of the insolvent laws, and was discharged; that in 1813 he again applied and obtained a discharge, and also in 1819. He also offered evidence by Matthew Murray, that in 1817, Berrett was considered insolvent, and that the defendant paid the fees due from Berrett to him for 1817 and 1818, and offered an acknowledgment for the fees for 1819. He also offered evidence by Walter Worthington, that the defendant told the witness that he was willing to pay the plaintiff's claim, and considered himself responsible, but that he had been desired not to do so by Columbus O'Donnell, and had received from said O'Donnell a bond of indemnity in the event of a judgment against him; that the defendant had had property assigned him by Berrett, which he had conveyed to O'Donnell. The defendant then prayed the opinion of the court, and their direction to the jury, that on the whole of the said evidence, the plaintiff was not entitled to recover; which opinion and direction the Court, [Archer, Ch. J. and Ward, A. J. ] refused to give. The defendant excepted; and the verdict and judgment being against him, he appealed to this court.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

Every collateral undertaking to answer for the debt, &c. of another is, by the statute of frauds, void, if not in writing; but original undertakings are not within the statute, and need not be in writing.

Where there is a preexisting debt, or other liability, a promise to pay by a third person, having immediate respect to, and founded upon, such debt or liability, without any new consideration moving to him, is a collateral undertaking, and is within the statute.

But where, distinct from the original liability, there is a superadded consideration for the promise, moving between the party making it, and him to whom it is made, the undertaking is an original one, and is not within the statute.

Where there is no previous liability, but the promise of one is the inducement to, and ground of, the credit given to another, such promise is also a collateral undertaking, and within the statute; the rule being, that wherever the party undertaken for, is originally liable upon the same contract, the statute applies; but where such party is under no original liability, the promise is an original undertaking, not embraced by the statute, and is good, and his becoming liable afterwards does not alter the rule, though not in writing.

In cases of this kind of the sale of goods, &c. the liability of the parties obtaining them depends upon the question, to whom was the credit given? And that is a question for the decision of the jury; though there are cases under the statute in which the liability of the party undertaken for, is a question of law. The debiting the party obtaining goods with them in the books of the vendor, not conclusive evidence that the credit was given to him.

In an action upon a valid collateral undertaking to pay the debt of another, the declaration must be on the special promise; but upon an original undertaking the proper remedy is indebitatus assumpsit.  

COUNSEL:
R. Johnson,  [**5]  for the Appellant, contended, that the promise of the appellant to pay the debt being in parol, notwithstanding the circumstances in the case, was void under the statute of frauds. He referred to the statute in Rob. on Frauds, Appendix 467. Buckmyer vs Darnall, 2 Ld. Raym, 1085. Matson vs. Wharam, 2 T. R, 80. Anderson vs. Hayman, 2 H. Blk. 120. 1 Com. on Cont. 53. 1 Bac. Ab. tit. Agreement, 123. Lamborn vs. Watson, 6 Harr. & Johns. 252; and Lamborn vs. Moore, Ib. 422.

C. S. W. Dorsey, for the Appellee, cited Phillips vs. Bistolli, 9 Serg. & Low. 163. Davis vs. Davis, (ante 36.) Burt vs. Gwinn, 4 Harr. & Johns. 507.  

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

OPINIONBY:
BUCHANAN 

OPINION:

 [*394]  BUCHANAN, Ch. J. delivered the opinion of the Court. The bill of exceptions, on which this case is brought up, was taken to the refusal of the court below to direct the jury that the plaintiff 

 [*395]  was not entitled to recover; and the fourth section of the statute of frauds, by which it is provided, "that no action shall be brought, whereby to charge the defendant upon any special promise to answer for the debt, default or miscarriage, of another person,  [**6]  unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto, by him properly authorized," is relied upon to sustain the appeal.
The record does not inform us why the court refused to give the direction prayed; whether on the ground, that in the opinion of that tribunal, upon the facts in the cause, the plaintiff was entitled to recover, or because it was deemed the province of the jury to determine to whom the credit was originally given. The statute of frauds has furnished a wide field for the exercise of judicial ingenuity; and it is perhaps to be regretted, that in the range of construction any of its provisions should have been infringed or evaded.
A strict adherence to the letter, would, it is believed, have prevented much litigation, of which the introduction of exceptions has proved a fruitful source; it may now, however, be assumed, as the settled construction of that branch of the fourth section, on which this case depends, that every collateral understanding, or promise, to answer for the debt, default or miscarriage, of another,  [**7]  is within the statute, and void, if not in writing; but that original undertakings are not within the statute, and need not be in writing.
Collateral and original, have become the technical terms, whereby to distinguish promises that are within, and such as are not within the statute. And as they are terms not used or defined in the statute itself, it may here be proper to notice the general distinguishing characteristics of collateral and original promises, as understood in relation to the statute of frauds.
Where there is a preexisting debt, or other liability, a promise by a third person, having immediate respect to, and founded upon the original liability, without any new consideration moving to him, to pay or answer for such debt or liability, is a collateral undertaking--as in the case of Fish vs. Hutchinson, 2 Wils. 94, which was an action founded on a promise by the 

 [*396]  defendant to pay a debt due from one Vickars to Fish, (for which Fish had brought suit,) in consideration that Fish would stay his action against Vickars, which being a promise to pay the still subsisting debt of another, was held to be clearly within the statute.  [**8]  And so in Kirtham vs. Martin, 2 Barn. & Ald. 613, where A having wrongfully killed the horse of B, a promise by C to pay B the damages he had sustained, in consideration that he would not sue A, was adjudged to be within the statute.
But where, distinct from the original liability, there is a new and superadded consideration for the promise, moving between the party promising, and him to whom the promise is made, in such case it is an original undertaking--as in Williams vs. Leper, 3 Burr 1886, where the defendant, having got possession of goods which were subject to distress for rent in arrear, promised the landlord, (the plaintiff,) to pay him the rent, if he would desist from distraining.
There the promise by the defendant was to pay the amount of rent due from another; but the parting by the landlord with his lien on the goods in the defendant's possession, and thus relieving them from liability to be distrained upon, was a new and superadded consideration, moving between the landlord and the defendant, and the immediate ground of the promise.
There are many cases proceeding upon this distinction, between a promise founded [**9]  upon the liability alone of a third person, and one which is induced by a distinct and superadded consideration moving between the immediately contracting parties--as Anstey vs. Marden, 4 Bos. & P. 130; Castling vs. Aubert, 2 East 325; and Read vs. Nash, 1 Wils. 305.
Again, where there is no previously existing debt, or other liability, but the promise of one is the inducement to, and ground of, the credit given to another, by which a debt or liability is created in him to whom the credit is given, such a promise is a collateral undertaking.
The general rule being, that wherever the party undertaken for, is originally liable upon the same contract, the promise to answer for that liability is a collateral promise, and must be in writing. As if B gives credit to C for goods sold and delivered to him, on the promise of A to see him paid, or to pay 

 [*397]  him for them if C should not, in that case it is the immediate debt of C, for which an action will lie against him, and the promise of A is a collateral undertaking to pay that debt, he being only as a security.
But where the party undertaken for is under no original liability, [**10]  the promise is an original undertaking, and binding upon the party promising, without being in writing. Thus, if B furnishes goods to C, on the express promise of A to pay for them, as if A says to him, let C have goods to such an amount, and I will pay you, and the credit is given to A, in that case C being under no liability, there is nothing to which the promise of A can be collateral; but A being the immediate debtor, it is his original undertaking, and not a promise to answer for the debt of another. The case of Buckmyer vs. Darnall, 2 Ld. Raym. 1085, may be considered a leading and instructive case on this subject. And Watkins vs. Perkins, 1 Ld. Raym. 224; Harris vs. Huntback, 1 Burr 371. Jones vs. Cooper, 1 Cowper 227; Matson vs. Wharam, 2 Term. R. 80; Anderson vs. Hayman, 1 H. Bl. 120; and Keate vs. Temple, 1 Bos. & P. 158--are illustrative of this general position, that whether a promise is collateral or original, depends upon the liability of the party undertaken for.
Hence the first point of inquiry in such cases [**11]  is, whether the party undertaken for, is liable at all on the contract; or, to whom the credit was originally given? The existence of such liability being implied in the very notion of a collateral undertaking.
In ascertaining which, the extent of the undertaking, the expressions used, the situation of the parties, and all the circumstances of the case, should be taken into consideration; and in the case of goods, &c. furnished for the use of one at the instance of another, where the undertaking is collateral, the declaration in an action for the amount, founded on such collateral undertaking, must be on the special promise.
But where it is an original undertaking or promise, the proper remedy is the action of indebitatus assumpsit.
This is an action of general indebitatus assumpsit, for goods furnished to Joseph Berrett, at the instance of the appellant, which is resisted on the ground of a supposed subsisting liability 

 [*398]  on the part of Berrett, to whom it is contended the credit was originally given, and therefore, that the promise of the appellant not being in writing, was void under the statute of frauds.
If Berrett was originally liable,  [**12]  it is very clear that the promise of the appellant was merely collateral, and within the statute; but whether he was or was not liable, depends upon the further question, to whom was the credit given? For if the credit was not given to him, but to the appellant, then it was not his debt, but the immediate debt of the appellant, for which he is liable in this form of action, notwithstanding the promise was not in writing, being an original undertaking, and not a collateral promise, within the statute, to answer for the debt of another.
And even if Berrett has since become liable, such subsequent liability cannot have the effect to alter or change the original character of the appellant's promise; but such as it was at the time of the contract, it is now. The inquiry therefore, at the trial, should have been, what was the predicament of the parties at the time the goods were delivered; was the credit given to Berrett on the suretyship of the appellant, or was it given to the appellant himself alone? And not whether by subsequent circumstances, Berrett had rendered himself liable.
It is the undoubted province of the court, to determine questions of law, arising upon [**13]  the facts of a cause, and the equally unquestioned province of the jury to decide the questions of fact. Whether the party undertaken for, was originally liable at all upon the contract, is not always a question of fact, but there are cases in which it is a question of law to be decided by the court. As in Buckmyer vs. Darnall, before cited, which was an action against Darnall on his undertaking, that if the plaintiff would hire a horse to one English, English would redeliver him.
There the point of inquiry was, not to whom the credit was given, but whether by operation of law English was liable on the contract; or whether, if liable at all, it was not a liability growing out of a subsequent wrong, as the converting the horse to his own use, which was a mere question of law. And the court being of opinion, that English was liable to an action of detinue, on his implied promise upon the bailment to redeliver 

 [*399]  the horse, it was determined, the delivery, the implied contract for redelivery arising upon the act of delivery, and the undertaking by Darnall, being all coincident in point of time, and constituting one entire transaction, that the promise [**14]  of Darnall was collateral.
But here the point of inquiry at the trial was, to whom the credit was given? Which was purely a question or inference of fact from the evidence, to be found by the jury, upon which the legal responsibility of the appellant on his promise depended.
The court, therefore, did right in refusing to give the direction prayed; which if they had done would have been to decide the fact, that the credit was given to Berrett, and to take from the jury a question which it was their province to decide, on a consideration of all the circumstances of the case.
Much stress has been laid on the circumstance that Berrett was debited on the books of the plaintiff, as tending to show that the credit was given to him. But however strong it may be supposed, it was only a circumstance to be submitted, with all the other evidence in the cause, to the jury--as in Anderson vs. Hayman, 1 H. Bl. 120, which is very similar to this case.
With the finding of the jury, whether right or wrong on the evidence, we have nothing to do, the case is not before us on a motion to set aside the verdict. The question, which we are called upon to decide, is whether [**15]  it was a matter fit to be left to the jury? And we think it was.
JUDGMENT AFFIRMED.  

14 of 33 DOCUMENTS 

NEWSON'S Adm'r. vs. DOUGLASS. DOUGLASS vs. NEWSON'S Adm'r.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

7 H. & J. 417; 1826 Md. LEXIS 50 

June, 1826, Decided 

PRIOR HISTORY:
 [**1]   CROSS APPEALS from Baltimore County Court. This was an action of assumpsit for money paid, laid out and expended; for money had and received, and for money lent and advanced. The defendant (Douglass,) pleaded non assumpsit, and issue was joined.

1. At the trial the plaintiff, (Newson's administrator,) offered in evidence, that his intestate was the owner of the ship Mohawk at the time of his death; and that while such ownership continued in the representatives of the intestate, the defendant sent to the offices of The Baltimore Insurance Company, and The Patapsco Insurance Company, the following orders for insurance. "George Douglass wants insurance for account of whom it may concern, on ship Mohawk and cargo, James T. Harding master, at and from hence to Port-au-Prince, against all risk. Say on vessel, valued thereat, $ 6000; on cargo $ 20,000. The Mohawk sails under a certificate of American ownership--is well fitted and found, and the captain a good officer. She will probably sail to day. In case of loss the amount to be paid to me. What premium, secured by R. H. and W. Douglass? That the said offices upon this order entered into the policies of insurance, which he also offered [**2]  in evidence. That by The Baltimore Insurance Company was executed on the 26th of August 1817, whereby the said company insured "George Douglass, for account of whom it may concern, as well in his own name, as for and in the name and names of all and every other person or persons to whom the same doth or shall appertain, in whole or in part, and every of them," &c. at and from Baltimore to Port-au-Prince, upon the cargo of the ship Mohawk, to the amount of $ 18,000 at a premium of 2 1/2 per cent. Another policy by the same company was executed on the same day, and in like manner and form as above mentioned, on the ship Mohawk, to the amount of $ 2,000 at a like premium. And the other policy by The Patapsco Insurance Company was executed on the same day, and in like form and manner, as above mentioned, on the ship Mohawk, to the amount of 4,000 at the like premium. The plaintiff further proved, that while said policies were in force, the said ship was lost by one of the dangers insured against, and that on said loss the said insurance companies on the 31st of December 1817, and 7th of March 1818, paid to the defendant, on account of said policies, the sum of $ 5,595 38. The defendant [**3]  then, for the purpose of proving, that in effecting said policies of insurance the defendant acted as the agent and on account of one Archibald Kane, who it was admitted was dead, offered to read in evidence the following letters from said Kane to the defendant, viz. One dated at Port-au-Prince the 28th of June, 1817. "The sole object of this letter is to request you will make insurance for me to the amount of twenty thousand dollars, as follows: ten thousand dollars on coffee, valuing the same at fifteen dollars pr. cwt. on Logwood three thousand dollars, valuing the same at twenty-five dollars per ton; and on the hull of the ship Mohawk, seven thousand dollars, on board the ship Mohawk, Harding, master, at and from Port-au-Prince to Baltimore. The Mohawk will sail in ten days." Another dated at Port-au-Prince, the 28th of June 1817. "The enclosed letter for insurance let it have your earliest attention. The ship Mohawk was formerly the La Franchise, under the Haytian flag, but during her last voyage to New-York, she obtained papers enabling her to sail under the American flag, though she did not get them early enough to clear out from New-York for this place. She is a fine ship,  [**4]  almost new, and coppered to high ballast mark. She was built at New Bedford, and is six years old. My object, on her arrival at Baltimore, is to sell or exchange her for a good schooner of about 800 bls; say, that will stow about 130 a 150 wt. coffee in bags, to be kept as a regular trader on my own account between this and Baltimore. I do not care much about her being coppered, as she never should lay here long enough to be injured by worms. The ship is too large for my purpose, and her foreign duties and charges makes it ruinous. Is it not possible for you to make the exchange for me, on almost any terms, with some of your ship-builders? The Mohawk would do well to load for Cadiz, and there sell her. She is well found in every thing. Will you, my dear sir, sound, and see if any arrangement can be made on her arrival? She has cost me, first and last, $ 20,000, and I declare I should be willing to exchange her for a schooner value $ 5000. I shall write you fully by her, in the meanwhile you could make inquiries, &c. I shall do a great deal of business with you hereafter. Since the unfortunate failure of my northern friends, I shall do every thing with you? and I beg particularly that [**5]  all our affairs may be kept snug from every one. I have lost several fortunes in supporting my friends, and I must now devote my time and attention to my own interest. With you, you will always find me punctual and correct, and with your good attention to my interest in Baltimore, I flatter myself I shall soon look up. I write my friend by this conveyance that I shall merely send the Mohawk to you with wood, to return with lumber. I beg you will keep me regularly informed of your market for German goods. You know the kind fit for this market. Provisions and Yankee cargoes of fish are tumbling in from the N and Eastern states, and markets falling. I hope the Mohawk will sail in all next week." Another letter, dated at Port-au-Prince, the 5th of July, 1817. "Inclosed you have invoice and bill lading of coffee and logwood, shipped on board the Mohawk, Harding, master, amounting in our currency to $ 21,810 72, which you will dispose of when you think proper. I have determined the Mohawk shall return, having engaged with President Petion to furnish him with a quantity of pitch pine timber and boards, as per his letter herewith, and to which I ask your best attention. Capt. Harding is the [**6]  stepson of my deceased friend Capt. Newson, who died here last month, and to him I shall continue the command of the ship. He will engage a friend of his as mate at New-York. On the arrival of the ship at Baltimore you will discharge the crew, the amount due them, if they arrive in all this month, will be a little under one thousand dollars, as per statement herewith. I wish you to take complete charge of the vessel in unloading and loading her, as Capt. Harding must go on to New-York to regulate some affairs, and will return to Baltimore in about ten days. I am well aware of your zeal, attention and economy, and I trust the Mohawk, will not be over twenty days in port. On her return she will have 10 sailors and an officer, and I wish you to put in provisions for the crew for only 60 days, and small stores for the cabin, say to amount of 60 or $ 70. Capt. Harding is in my full confidence, and will inform you his object in going on to New-York. The vessel wants nothing to make her voyage back here, excepting a few days caulking. On her arrival here I can put her in order, having the government store and arsenal rather in my favour. I leave every thing to your good management. When the [**7]  100 feet timber and boards are in, and the articles contained in my note, should she not be full, fill her up with white pine boards. I shall confidently look for her in this port in 60 days from this date. The return cargo to be insured out to Port-au-Prince; the vessel also to be estimated at six thousand dollars." Then follow the invoice signed by Harding, and the letter of president Petion, both dated the 4th of July 1817. Another letter, dated at Port-au-Prince the 9th of July 1817. "Inclosed you have duplicate for insurance on the Mohawk and cargo, which vessel sailed on Saturday evening the 5th inst. (this is Monday,) to which I beg your attention. I also inclose duplicate invoice and bill lading of her cargo. I have nothing further to add, only a full confirmation of my respects by her. Hoping soon to hear from you, and that you will keep all my affairs snug between us." "Note for return cargo, ship Mohawk, Harding, master, to be shipped by Mr. George Douglass on my account and risk, under full insurance, to Port-au-Prince, 1000 barrels," &c. Another letter, dated at Port-au-Prince the 9th of July, 1817. "Your highly esteemed favour of 21st of June was handed me this morning [**8]  by Mr. Crocket. Since my respects pr. Mohawk many herrings and soap have arrived, and as the herrings were intended for gover't. they do not now want them; or in other words, I think I can do better than to furnish them. In the event of my order per Mohawk not having been acted upon, the enclosed note for her return cargo you will please allow to take its place. The India goods and hkfs. I shall leave entirely to your good judgment, as you well know what this market is. I have merely stated the kind that are now in demand, and as no arrivals from England can be expected till Novr. or Decr. I calculate this will do well. The lumber for the president, as well as his tables, as stated in his letter enclosed to you pr. Mohawk, will have, I am sure, your best attention. If I had funds in your hands I would add considerably to the India goods. You may rest assured, my dear sir, should my funds not amount to my order, which I suspect they will not by several thousand dollars, you shall be in full remittances within 90 days from their sailing from your port. I do not expect that you will be willing to advance more, especially after the fate of my northern friends, but I can only say, A. Kane [**9]  is unexceptionable for all his engagements. We have nothing new from France respecting this Island. This letter goes by the governor Selby for New York, which I hope may be in time to stop the herrings and soap." To the reading of these letters the plaintiff objected; but the Court, [Archer, Ch. J. and Hanson, and Ward, A. J.] overruled the objection, and permitted them to go to the jury. The plaintiff excepted.

2. The defendant then offered to read in evidence the following certificate, given by James T. Harding, for the purpose of showing the amount of disbursements paid by the defendant on account of the ship Mohawk, in order to have said disbursements deducted from the claim of the plaintiff, viz. "I James T. Harding, late master of the ship Mohawk, do hereby certify, that Mr. George Douglass' bill of disbursements against the ship Mohawk, when she left Baltimore in August 1817, amounted to twenty-eight hundred and ten dollars and sixty-seven cents, and that the same was just and correct. New-York, 9th October, 1824.     James T. Harding."

State of New-York. City of New-York, Set. James T. Harding of the said city, being duly sworn, doth depose and say, that the [**10]  matters of fact set forth in the above certificate, to which he hath subscribed his name, is in all respects just and true; and further says not.     James T. Harding.

Sworn to this 18th of October 1824, before me,

John Hildreth, Commr.

To the reading of which paper the plaintiff objected, there being no proof that Harding was dead; but the court overruled the objection, and permitted the paper to be read in evidence to the jury. The plaintiff excepted.

3. The plaintiff then prayed the court's opinion and instruction to the jury, that if they believed the plaintiff entitled to recover the amount received by the defendant on the policies stated in the preceding bills of exceptions, deducting the disbursements paid by the defendant on account of the ship insured by said policies, that then the plaintiff was also entitled to be allowed legal interest on said amount. Which prayer the Court, [Archer, Ch. J. and Ward, A. J.] refused to give, being of opinion, and so instructing the jury, that whether interest should be allowed or not, was a question to be decided by them, and not by the court. The plaintiff excepted.

4. The plaintiff, in order to support the [**11]  issue on his part, gave evidence, that the defendant handed into the Baltimore Insurance Company, and Patapsco Insurance Company, two incorporated companies in the city of Baltimore, the orders of insurance stated in the plaintiff's first bill of exceptions, which were respectively accepted, and that the policies, also set forth in the first bill of exceptions of the plaintiff, were executed in due form by the said companies respectively. And further gave in evidence, that the said ship Mohawk, mentioned in the said policies of insurance, was the property of Samuel Newson, the plaintiff's intestate; and that the said ship departed and set sail from the port of Baltimore, on the voyage insured, on the     day of September, in the year 1817, and in the prosecution of that voyage was wholly lost by the perils of the sea. He further gave in evidence, that the defendant applied to the said insurance companies, and received from them the amounts respectively insured by the policies aforesaid, after deducting therefrom the usual charges. And further read in evidence the depositions, returned under the commission issued in this cause to take testimony, and the following exhibit No. 1. "Know [**12]  all men by these presents, that I Archibald Kane, of the state of New-York, a native born citizen of the United States, (but at present in the city of Port-au-Prince, island of Saint Domingo) for and in consideration of the sum of five thousand dollars to me in hand paid, at and before the sealing and delivery of these presents, by Samuel Newson, ship master of the city of New-York, have granted, bargained and sold, and by these presents do grant, bargain and sell, unto the said Samuel Newson, his executors, administrators and assigns, the whole of the good ship or vessel called The La Franchise, of the burden of three hundred and sixty tons, or thereabouts, together with all her masts, sails, yards, anchors, cables, ropes, cords, boats, oars and furniture, to the said ship belonging or in anywise appertaining. To have and to hold the said ship or vessel unto him the said Samuel Newson, his executors, administrators and assigns forever, as his and their own proper goods, and to and for his and their own proper use and uses forever. And the said Archibald Kane doth hereby for himself, his heirs, executors and administrators, covenant, promise, grant and agree, to and with the said Samuel [**13]  Newson, his executors, administrators and assigns, that the said Archibald Kane, at the time of the sealing and delivery of these presents, is the true and lawful owner of the said ship or vessel, and premises, hereby granted, bargained and sold, or mentioned, or intended so to be, unto the said Samuel Newson, his executors, administrators and assigns, as aforesaid; and that he the said Archibald Kane, at the time of the sealing and delivery hereof, hath in himself full power and good authority in law to grant, bargain and sell, the said ship or vessel, and premises above bargained and sold, or mentioned, or intended so to be, unto the said Samuel Newson, his executors, administrators and assigns, in manner aforesaid; and also that it shall and may be lawful to and for the said Samuel Newson, his executors, administrators and assigns, from time to time, and at all times hereafter, quietly and peaceably to have, hold, possess and enjoy, the said ship or vessel, and all other the premises hereby granted or mentioned, or intended so to be, without the let, trouble, denial, molestation, hindrance or disturbance, whatsoever, of him the said Archibald Kane, his executors, administrators [**14]  or assigns, or of any other person or persons whatsoever, lawfully claiming, or to claim by, from, or under him, them, or any of them, and that freed and discharged of and from all former and other bargains, sales and incumbrances, made, done or committed, by him the said Archibald Kane, or any other person or persons by his order, consent, privity or procurement. In witness whereof I have hereunto set my hand and seal this twenty-fourth day of September, in the year of our Lord one thousand eight hundred and sixteen.

Archd. Kane, (Seal.)

Sealed and delivered in presence of,

H. Wainwright, James T. Harding."

"James T. Harding, of the city of New-York, deposeth and saith as follows: To the first interrogatory this deponent saith that he knows the parties, plaintiff and defendant. That he knew the plaintiff ten or twelve years since slightly, and that he knew the defendant in the year 1817, since which time he has had but little knowledge of him. To the second interrogatory this deponent saith, that he knew both Archibald Kane and Samuel Newson; that the said Samuel Newson was the step-father of the witness. That he first knew Archibald Kane about twelve years since,  [**15]  and was acquainted with him up to about July 1817, and that he has known Samuel Newson since he the witness was a child. That they are both dead. Kane died at Port-au-Prince in September 1817, and Newson died at Port-au-Prince in June in the same year. To the third interrogatory this deponent saith, that he knows the handwriting of Archibald Kane, has seen him write, and has received letters from him. The witness having looked upon the paper, marked exhibit No. 1, saith that the signature to the said paper, "Archd. Kane," is in the proper handwriting of the said Archibald Kane. To the fourth interrogatory this deponent saith, that at the time of the date of the said paper marked exhibit No. 1, the said Archibald Kane resided at Port-au-Prince, and the said Samuel Newson was a ship master, sailing out of the port of New-York; that he does not know whether Newson was at Port-au-Prince at the time the said paper bears date, or not. That Archibald Kane had resided at Port-au-Prince several years previous to 1817, cannot say how many, and that Newson never regularly resided at Port-au-Prince but traded backwards and forwards between that place and New-York. That both Archibald Kane and [**16]  Samuel Newson were, as deponent believes, citizens of the United States at the time the said paper bears date; he knows nothing to the contrary; that the said Archibald Kane and Samuel Newson, or either of them, were not connected with any commercial house in the United States to this deponent's knowledge. To the fifth interrogatory this deponent saith, that the signature of James T. Harding, to the paper marked exhibit No. 1, is the true signature of the witness; that he is acquainted with the handwriting of H. Wainwright, has seen him write, has not corresponded with him, but has received notes and bills from him. To the sixth interrogatory this deponent, having looked upon the said paper marked exhibit No. 1, saith that the signatures to the said paper are in the proper handwriting of him the said witness, and of H. Wainwright the other subscribing witness. To the seventh interrogatory the deponent saith, that he is one of the attesting witnesses to the said paper marked No. 1, and did subscribe his name thereto as such, and did see the other subscribing witness sign the same, and that he did see the said Archibald Kane sign, seal, and deliver the said paper writing as his act and [**17]  deed, in the latter end of January, or beginning of February 1817, at the house of the said Archibald Kane in Port-au-Prince. To the eighth interrogatory this deponent saith, that to the best of his knowledge and belief the said ship, named and described in the said paper marked exhibit No. 1, belonged, in the months of August and September 1817, and up to the time of her loss, to the said Samuel Newson, or rather to his representatives. That at the time the said paper bears date, the name of the said ship was La Franchise; that the name of the said ship was changed at New-York in the latter end of December 1816, to Mohawk, by the said Samuel Newson, as the witness presumes; all he knows is, that the name Mohawk was painted on her stern. Witness does not know the reason of changing her name, the said ship had previously sailed under Haytien colors. The witness sailed from Baltimore on board the said ship in August 1817, for Port-au-Prince, and the said ship was wrecked and totally lost on Crooked Island on the tenth day of September in that year. The witness says, that the defendant told him the said ship was insured for the said last mentioned voyage for six thousand dollars; that [**18]  the said ship cleared out by the name of Mohawk on her last voyage. To the ninth interrogatory the deponent saith, that the said ship was cleared out on her last voyage from the United States by the defendant. That on the death of the said Samuel Newson, who was captain of the said ship, this deponent, being the first officer, took command of the said ship with the assent of the said Archibald Kane, for the purpose of making a voyage from Port-au-Prince to Baltimore, and back. This deponent arrived at Baltimore in said ship, as master, and sailed again on her last voyage for Port-au-Prince, without any new appointment as such master. The witness shipped the seamen for the said last voyage under the direction of a notary. To the cross interrogatories the witness says, that being sworn on the Holy Evangelists of Almighty God, he is willing, truly and faithfully, to answer the interrogatories put by the defendant. To the first cross interrogatory the deponent saith, that the said ship did not make any voyage from Port-au-Prince to New-York in the year 1817; but the said ship did make a voyage from Port-au-Prince to New-York in 1816, at which time witness was mate or first officer of said [**19]  ship, under the said Samuel Newson as captain. The witness does not know to whom the said ship belonged at that time. She was sometimes called the President's ship, (meaning Petion's ship,) and sometimes Mr. Kane's ship; he presumes she was Mr. Kane's ship. To the second cross interrogatory the deponent saith, that the said ship was loaded at Port-au-Prince in the year 1816, by the said Archibald Kane, and consigned to John Kane of New-York, brother to the said Archibald Kane; that no freight was ever paid or demanded on the goods of A. Kane, to the knowledge of the witness. To the third cross interrogatory the deponent saith, Archibald Kane and Samuel Newson were concerned together for several years, and that the said Samuel Newson sailed in the employ of the said Archibald Kane about a year previous to the year 1817; that he presumes that the said Samuel Newson enjoyed the confidence of the said Archibald Kane during that time. To the fourth cross interrogatory the deponent saith, that he understood and believed that the said ship belonged to Archibald Kane during the time she was called La Franchise, but the witness believes she belonged to Samuel Newson after she was called the [**20]  Mohawk. The witness considers that Samuel Newson was in the employ of Archibald Kane, while the said ship was under Haytien colors, but cannot say whether Newson was in the employ of Kane after the name of the said ship was changed to Mohawk; he has no belief on the subject. The witness says, that the said ship La Franchise did enter, unload and load, in New-York, in 1816, and that captain Newson did obtain a certificate of American ownership of the said vessel, and called her the Mohawk. To the fifth cross interrogatory the deponent saith, that he continued in the same capacity, as first officer of the said ship, until her arrival at Port-au-Prince, and up to the time of captain Newson's death; that the said ship arrived at Port-au-Prince on the 18th day of January 1817, and captain Newson died on the 5th of June following. Witness says he has heard captain Newson say that the Mohawk belonged to him, but never heard him say any thing on the subject of the payment of the consideration--he believes captain Newson was able to buy such a ship. Witness knows nothing about A. Kane's being the rightful owner of said ship, or of her being covered by captain Newson for A. Kane, and had no [**21]  means of ascertaining what the general opinion was at Port-au-Prince, as he had but little intercourse with the shore. She was generally called The President's Ship, both before and after her name was changed to Mohawk. The witness never heard captain Newson, in speaking of said ship Mohawk, speak of her as Mr. Kane's ship; but he did hear captain Newson say, that if he could settle his affairs with the said Archibald Kane, he would return home with the said ship, and that he believed Archibald Kane was playing the fool with him, and would not furnish him a cargo. Witness never heard Archibald Kane speak of the Mohawk as his ship; but after the death of captain Newson, the said vessel being then loading for New-York, Kane said he was acquainted with captain Newson's affairs, and changed the destination of the ship to Baltimore, where he said he would furnish a cargo for Port-au-Prince, and thence send her to Europe where she could be sold. The witness says, that Archibald Kane instructed him to go on to New-York to obtain authority from the administrators of Samuel Newson to dispose of the said ship; and that after the arrival of the said ship at Baltimore, he the witness did go on [**22]  to New-York for that purpose, but learnt that no administrators had been appointed. Witness says that captain Newson did draw the money, to pay the crew of the said ship Mohawk, from Archibald Kane, and that he the witness also did the same after his appointment to the command of the said ship; as to his appointment to the command of the said ship, the witness refers to what he has already said on that subject in his direct examination. That at the time witness took the command of the said ship, he had no particular conversation with the said Archibald Kane, but that Kane promised to allow witness sixty dollars per month wages. The witness says that Kane loaded the said ship Mohawk with logwood and coffee, consigned to G. Douglass of Baltimore, the freight of which was, as witness believes, stated per bill of lading to have been paid at Port-au-Prince. That said Kane did not pay, or promise to pay, any freight to witness, but said that when the vessel returned he would close up and settle captain Newson's accounts. That he the witness did sign the bills of lading without asking any questions concerning freight; Mr. Kane saying the bill of lading was filled up as previously mentioned [**23]  to satisfy Mr. Douglass. The witness says that Mr. Kane did not mention to him in confidence any thing relating to his business, or his creditors in New-York, or to the situation of his property. That the said Archibald Kane did not charge witness to go on to New-York, immediately after his arrival at Baltimore, for the purpose of preventing his creditors from attaching or molesting the ship or cargo at Baltimore; that witness did go from Baltimore to New-York, but for the purpose previously mentioned. The witness says he has no recollection of a portage bill having been sent to G. Douglass by A. Kane; but he does recollect, that on his arrival at Baltimore, he made out a portage bill, in which, as he believes, the wages of captain Newson were not inserted, his own wages as mate and captain, and the wages of the crew, were included in the said portage bill. Witness recollects that A. Kane did say he would give orders to G. Douglass to pay the portage bill at Baltimore, but does not recollect that he said any thing further on this subject to the witness or the crew. He believes he did ask Mr. Douglass for the amount of the portage bill shortly after deponent's arrival at Baltimore.  [**24]  The witness has no recollection of having stated to Mr. Douglass that A. Kane had made a mistake in calculating the wages of captain Newson, nor has he any recollection of the amount received of Mr. Douglass to pay off the crew. Witness says that he had no bargain or agreement with A. Kane on the subject of cabin stores. That he recollects to have had some altercation with Mr. Douglass as to the amount, and recollects to have paid a part of it himself to Mr. Chappell, but he has no particular recollection of the amount thus paid by him. Witness says he has no recollection of mentioning to Mr. Douglass that Mr. Kane had become d--n stingy and close in sailing his vessels. The witness had no understanding with Mr. Kane about the privilege of an adventure in the Mohawk free of freight, nor does he recollect any conversation with Mr. Douglass on that subject. Witness says that after the said vessel was loaded at Baltimore by G. Douglass, and consigned to A. Kane, he the witness did sign bills of lading, in which the freight was stated as having been paid at Baltimore, the witness considering that all the accounts would be arranged by Mr. Kane at Port-au-Prince; that neither Mr. Douglass,  [**25]  nor any one else, paid the witness the freight, or any part of it; that the witness signed the bills of lading without asking any questions, for the reasons previously given. Witness says, that at the time of witnessing the said paper marked exhibit No. 1, the parties thereto were present; that neither of the parties stated to the witness the purport of that paper, and that he did not at that time, nor at any other time, witness any other paper of the same kind or appearance. The witness does not know that he ever did witness a counter bill of sale of the said ship La Franchise, or Mohawk, from Samuel Newson to Archibald Kane. Witness never understood from Archibald Kane whether he had or had not made a bona fide sale of the said ship La Franchise, or Mohawk, to Samuel Newson." Whereupon the defendant, in support of the issue on his part, offered in evidence the letters stated in the plaintiff's first exception, written by Archibald Kane to the defendant, respectively bearing date the 28th of June and 5th of July 1817, to show, that in making the said policies of insurance he was acting as the agent of the said Archibald Kane. And further offered in evidence the depositions returned [**26]  under the commission in this cause. The defendant then moved the court to instruct the jury, that if they shall be of opinion that the bill of sale offered in evidence by the plaintiff, as proved under the commission aforesaid, was a merely fictitious instrument, without any consideration really paid therefor, that the sale was merely colorable, and intended to cover the interest of A. Kane in the Mohawk, under the name of Samuel Newson, and that notwithstanding such pretended sale the property of the vessel in the understanding, both of Newson and Kane, remained in the said Kane at the time of the insurance effected by the defendant, and at the time of the loss of the vessel, that then the plaintiff is not entitled to recover in this action. And the defendant further moved the court to instruct the jury, that if the jury shall be of opinion, that the bill of sale aforesaid from A. Kane to Samuel Newson, is a genuine instrument, and that the sale of the vessel by Kane to Newson, was a valid and bona fide sale, yet if they shall also be of the opinion that the insurance effected by the defendant with the aforesaid insurance companies, as set forth in the evidence, were effected by the [**27]  defendant, as the agent and for the benefit of the said Kane alone, and that neither the said Newson, nor his representatives, nor any interest of their's, real or supposed, was within the contemplation either of the defendant, the agent, or of the said insurance companies, at the time the said insurances were effected, nor was intended by them, or either of them, to be covered by the said policy, that then the plaintiff is not entitled to recover in this action. Both of which instructions the Court [Archer Ch. J. and Ward, A. J.] refused to give; but were of opinion, and so instructed the jury, that if they should believe that the said bill of sale was executed by the said Archibald Kane, that then the same was good and legal evidence of title in the said Samuel Newson, and his representatives, and that no testimony was admissible to prove that said bill of sale was collusive and fictitious, and intended to defraud the creditors of the said Archibald Kane. The defendant excepted. Verdict for the plaintiff, and damages assessed to $ 2,784 71. Judgment on the verdict for $ 10,000 current money, the damages laid in the declaration, and costs; to be released on payment of the damages [**28]  assessed by the jury, with interest, &c.

The plaintiff and defendant both appealed to this court.  

DISPOSITION:
COLT'S APPEAL DISMISSED. On the appeal by Douglass. JUDGMENT AFFIRMED.  

HEADNOTES:

In an action of assumpsit by C, claiming to be the owner of the property insured, against D, to recover the amount received by D, upon certain policies of insurance effected in his name, for account of whom they might concern.--Held, that it was competent for D to show that the policies were effected by him as the agent of a third person, and that the letters of that person to D, directing the insurances, were admissible evidence of that fact.

The words, "whom it may concern," in a policy of insurance, are technical, and are understood to mean not any and every body who may chance to have an interest in the thing insured, but such person only as is in the contemplation of the contract. They suppose an agency, and look solely to the principal in whose behalf, or on whose account the agent acts. Such principal is the person in the contemplation of the contract, and is the one whom it alone concerns; and his existence may be proved by extrinsic evidence.

No person can avail himself of a policy of insurance, not containing the general clause "whom it may concern," or one of similar import, but those named in the policy as the parties insured, or on whose account it is expressed to be made. But a policy in the name of one, with this general clause, will cover the interest of any person for whose benefit it is intended when effected, and who either previously authorizes it, or subsequently adopts it--subsequent adoption in such a case being equivalent to a prior order for the insurance.

Where A authorizes B to effect an insurance for him--or B, without authority, designs to insure for A, and in either case B directs a sole agent to insure in such sub-agent's name, with the general clause, the policy will enure to A's benefit, although his interest was not known to the sub-agent, or to the underwriters, in like manner as it would have done had it been immediately effected by B himself.

The plaintiff C, claiming title to the property insured under a bill of sale to him from the principal of the defendant D--Held, that it was not competent for D to show that such bill of sale was intended by his principal to defraud his creditors, however unfair C's conduct may have been in relation to it.

The sworn certificate of the captain of a vessel, insured by an agent, of the disbursements of the agent upon the vessel, is not evidence of such disbursements, in an action, against the agent by the principal, to recover the amount received by the agent upon the insurance; but the captain himself should be produced.

Interest is recoverable as of right upon contracts in writing to pay money upon a day certain, as upon bills of exchange or promissory notes, or on contracts for the payment of interest, or where the money claimed has been actually used, and upon bonds, &c. but in other cases it is a question entirely for the jury, to be decided according to the equity and justice between the parties, on a consideration of all the circumstances of the particular case as disclosed at the trial.

After the opinion of the court was delivered, and before judgment was entered, the appellant was permitted to dismiss his appeal.  

COUNSEL:
Kennedy, for Newson's Adm'r. on the appeal by him. He contended, 1. That the court below erred in admitting in evidence the letters from Kane to the defendant, in the manner stated in the first bill of exceptions, for the purpose of showing, that the policies of insurance were intended for the benefit of Kane, and that the defendant acted for Kane alone, in effecting them, and not for Newson--because the same was contradictory to the terms of the policies, and the bill of sale from Kane to Newson.

2. That the court below also erred in admitting the certificate of James T. Harding, master of the ship Mohawk, in her last voyage, as competent evidence of the amount of disbursements made on account of said ship by the defendant, because Harding was alive, and was examined as a witness in the cause, and the said certificate was given by him after the commission which issued to take testimony was closed--and there was no privity between him and the plaintiff.

3. That the court below further erred in [**29]  allowing such disbursements, so proved, to be deducted by the jury from the amount of money received by the defendant from the insurance offices, on account of the said ship, and to which the plaintiff was entitled, because the defendant, by law, ought not to have been allowed for such disbursements, even if the same had been duly proved.

4. The court below erred in leaving to the jury the question of the plaintiff's right to recover interest, as a question of fact; and ought to have instructed them that the plaintiff was entitled to interest from the commencement of the action.

5. The court below erred in not directing the jury, if they found the execution of the bill of sale, to give a verdict for the plaintiff for the whole amount they should find the defendant received on account of the ship Mohawk, together with interest as aforesaid, deducting only the amount of the premium notes of the defendant; and that this court ought now to render the judgment which the court below should have given, it being mere matter of computation from the facts found by the jury, and admitted upon the record; and that there would therefore be no occasion for a venire de novo.

1. The [**30]  insurance of the vessel at the two offices, which is the only question in controversy, must enure to the benefit of Newson's representatives; and the letters of Kane were inadmissible in evidence while the ownership of the vessel was in Newson's representatives. It was not competent for the defendant to deny such ownership. He acted as the agent for Newson's representatives; and the insurance was made for whom it might concern. No parol evidence was admissible to show that any other person was interested but Newson's representatives; and it was only necessary to show that the vessel belonged to Newson's representatives. He cited 2 Phill. Evid. 45. Mumford vs. Hallett, 1 Johns. Rep. 439. Graves vs. Boston Marine Insurance Company, 2 Cranch, 419. Lyman vs. United Insurance Company, &c. 17 Johns. Rep. 337. Jackson vs. Foster, 12 Johns. Rep. 488. The making the insurance made the defendant an agent for Newson's representatives. He had the possession of the vessel, and was the agent of the person to whom she belonged; and the attempt to use in evidence Kane's letters, was an attempt to defeat the right owner out of the insurance. Lucena vs. Crauford, 3 Bos. & Pull. 75, 93 Routh vs. Thompson,  [**31]  13 East, 274. Lanyon vs. Blanchard, 2 Campb. 597. Hagedorn vs. Oliverson, 2 Maule & Selw. 485. Tenant vs. Elliott, 1 Bos. & Pull. 3.

2. On the second and third points, he cited French vs. Backhouse, 5 Burr. 2727. Wolff vs. Horncastle, 1 Bos. & Pull. 316. Whitaker's Law of Lien, 45. Whittington vs. The Farmers' Bank, &c. 6 Harr. & Johns. 548. Ross vs. Worsopp, 1 Bro. Parl. Ca. 284. Somerville vs. Somerville, 5 Ves. 780. Snook vs. Davidson, 2 Campb. 218. Pipon vs. Pipon, 9 Mod. 431. Holmes vs. Reemson, 4 Johns. Ch. Rep. 478. De Sobry vs. De Laistre, 2 Harr. & Johns. 224.

3. On the fourth point, he cited Liotard vs. Graves, 3 Caine's Rep. 234. Robinson vs. Bland, 2 Burr. 1085. Anonymous, 1 Johns. Rep. 315. Waddington vs. United Insurance Company, 17 Johns. Rep. 23.

R. Johnson, on the same side. On the first bill of exceptions he contended, that the letters of Kane were not evidence, because he would not have been admitted himself to give evidence of the facts contained in those letters, he having an interest in the event of the suit. 1 Phill. Evid. 36, (and note.) Harrison vs. Vallance, 1 Bingham, 45, (8 Serg. & Lowb. 239.) Jackson vs. Eaton, 20 Johns. Rep. 478.

On [**32]  the second bill of exceptions. If the facts in Harding's certificate were legally proved, they could not be evidence for the purpose for which the certificate was offered, because the amount of the disbursements were not pleaded by way of set-off, and no notice given of a set-off. 1 Chitty's Plead. 474.

Meredith, for Douglass. 1. On the first bill of exceptions. Kane's letters were not offered in evidence for the purpose of proving the property of the vessel to be in him, but to show that the insurance was effected by the defendant for Kane, and as his agent. It does not thereby follow that Kane sets up ownership in the vessel. Any person who has a special property in a vessel may insure. A charterer of a ship may insure her. Oliver vs. Green, 3 Mass. Rep. 133. Bartlett vs. Walter, 13 Mass. Rep. 267. Hobbs vs. Hannam, 3 Campb. 93. Phill. on Ins. 51. But it has been urged that the letters are contradictory to the policy of insurance, and on that ground inadmissible in evidence. The party on whose account the insurance was effected, is not named. The defendant stands in the policy as agent; and you may go out of the policy in order to ascertain who is the assured. Lawrence vs. Sebor,  [**33]  2 Caine's Rep. 203. Davis vs. Boardman, 12 Mass. Rep. 80. Phill. Ins. 63. Church vs. Hubbart, 2 Cranch, 196. 3 Starkie's Evid. 1021. Mechanics Bank of Alexandria vs. Bank of Columbia, 5 Wheat. 326. Grant vs. Hill, 4 Taunt. 380. The verdict in this case could not be used for or against Kane, in any suit by or against him. He was not, therefore, an interested witness. The letters are admissible evidence as a part of the res gestae.

2. On the second bill of exceptions. The point involved in this exception, as to the admissibility of Harding's certificate in evidence, is abandoned by the defendant's counsel. The question was hastily decided by the court below without argument. The error of the court below is confessed, and the exception is waived.

3. On the third bill of exceptions. The court below has not stated that it is a general principle that the jury are to allow interest or not in all cases, but that in this particular case it was a fact for the jury. Here the defendant may be assimilated to a stakeholder; and the question, whether he ought to pay interest, must depend upon his conduct, as to what manner he has used the money, or thrown obstacles in the way of its recovery [**34]  from him. This should be left to the jury to be ascertained by them. This is an action for money had and received; and the question of interest is for the jury, and depends upon the peculiar circumstances of the case. Pease vs. Barber, 3 Caine's Rep. 266. Anonymous, 1 Johns. Rep. 315.

4. On the fourth bill of exceptions, he contended, 1. That the evidence offered by the defendant in this exception, was admissible for the purpose for which it was offered. 2. That under the circumstances attending the effecting the insurance, it being designed for the benefit of Kane, and made by his authority, by the defendant as his agent, it did not enure to the benefit of the plaintiff's intestate, even though he was the true owner of the vessel; and that he was, therefore, not entitled to the proceeds of insurance in the hands of the defendant.

This bill of exceptions embraces two prayers made by the defendant--1st. Whether the bill of sale, being without consideration and fictitious, the plaintiff was entitled to recover. This prayer is hypothetical. The facts, that the transaction was collusive, are not to be doubted; and being so, no property in the vessel passed to Newson. The court [**35]  refused to give the direction prayed, because the evidence was inadmissible. Was the evidence inadmissible? It was introduced as collateral--between different parties to the instrument. Bend vs. Susquehanna Bridge & Bank Company, 6 Harr. & Johns. 128. Overseers of the Poor, &c. vs. Overseers of the Poor, &c. 10 Johns. Rep. 229. 3 Starkie's Evid. 1051. The defendant is no party to the bill of sale. He is not a privy; but a mere stakeholder of the fund, and not in privity with either party. The evidence was not to vary the legal operation of the bill of sale, but to defeat its existence, as a fraud upon Kane's creditors. It is not to substitute the parol for the written evidence, but to avoid the bill of sale. 3 Starkie's Evid. 1015. An instrument of writing intended in fraud of others, may be avoided by such other persons. Ib. 1017. 2d. The second prayer reverses the hypothesis in the preceding prayer, by admitting the property in the vessel to be in Newson, and raises the question, whether, as he was no party to the contract of insurance, and it did not refer to him, but was made for the benefit of Kane, the plaintiff, as his representative, was entitled to recover? The court decided,  [**36]  that if the facts were true, the plaintiff was entitled to recover. Suppose this action was by Newson against the underwriters; if he could not recover from them, he cannot recover from the defendant. If the insurers paid the money to the defendant by mistake, they could recover it back from him. Grant vs. Hill, 4 Taunt. 380. Could Newson recover from the underwriters? Two things must concur to enable him to recover from them--a contract, and an insurable interest. He might have contracted in person, or by his authorised agent. Here there was no contract between Newson and the underwriters, either in person or by agent. If by agent, where is the proof that the defendant was his agent? Newson was then dead, and he had no representative until after the money had been paid to the defendant. The plaintiff had no legal existence, either when the insurance was effected, or when the money was paid. There was no principal at the time of the insurance, or payment of the money. The proof is, that the contract of insurance was made for Kane. Could it, therefore, enure to the benefit of another person for whom it was not intended or made? No person can maintain an action on a contract to which [**37]  he is not a party. 1 Esp. Dig. 202, (105.) Jordan vs. Jordan, Cro. Eliz. 369. Crow vs. Rogers, 1 Stra. 592. There is no difference in the application of this principle to the doctrine of insurance. The clause in the policy of insurance, "for whom it may concern," is capable of being construed to comprehend the insurable interest of Kane, to the exclusion of Newson's. Here there is proof that the insurance was effected by the defendant as the agent of Kane, and there is no proof that he insured for any other person. All actions on policies of insurance must aver an insurable interest in the plaintiff, and that the insurance was made for his benefit, and on his account. Bell vs. Ansley 16 East, 141, (and note.) Cohen vs. Hannam, 5 Taunt. 101. If the action had been by Newson against the underwriters, and the proof in this action was given in evidence, it would not support the averment which he ought to make in his declaration. Phill. Ins. 57, 58. Bodwy vs. Union Insurance Company, Condey's Marsh. 473, (note.) It must appear that the policy was effected for a particular person. He must be a party to the contract, or show that it was made for his benefit. Lawrence vs. Sebor, 2 Caine's [**38]  Rep. 203. Phill. Ins. 60. A person having an insurable interest, if it is different from that insured, cannot recover on the policy. Toppan vs. Massey, 2 Mass. Rep. 365. Conway vs. Gray, 10 East, 536. Phill. Ins. 63. An insurance cannot enure for the benefit of another for whose benefit it was not made. It has not been shown that the defendant insured for the benefit of Newson, or his representative. The representative of Newson being excluded by the proof in this bill of exceptions from having an insurable interest, he cannot recover. Routh vs. Thompson, 11 East, 428. Routh vs. Thompson, 13 East, 274. Where an insurance is effected by an agent, it must enure for the benefit of the person who constituted him the agent. Seamans vs. Loring, 1 Mason's Rep. 128. It has been said that the plaintiff has adopted the insurance, as made by the defendant, as his agent. The adoption, if it could be made, comes too late. It is after the money has been paid to the defendant. Here there could be no adoption, because the insurance was not intended for his benefit, or on his account.

R. Johnson, for Newson's Adm'r. in reply, as to the first, second and third bills of exceptions, and in answer [**39]  to the fourth bill of exceptions.

1. On the first bill of exceptions. If the letters of Kane were out of the case, the plaintiff would have been entitled to recover to the extent of his demand. He proved an insurable interest, and that the defendant insured for the benefit of those concerned. The irresistible conclusion would be, therefore, that he acted as the agent of the plaintiff. But the letters are intended to prove that the defendant acted as the agent of Kane, and for his benefit; and not that Kane did not look to the interest of Newson's representative, and act as his agent. The letters were inadmissible. 1. Kane is to be assumed to act as agent of Newson. 2. Whether he did or not, but as a wrong-doer, the plaintiff has a right to adopt his acts. There was no evidence to show that Kane had an insurable interest, unless as agent of Newson. Kane was not the owner of the vessel; the ownership was proved to be in Newson. The insurance must be presumed to have been made for the benefit of the person having the insurable interest in the thing insured. What right had Kane to insure the property of another, unless as agent? If he did not insure as agent, then he acted as a tort [**40]  feasor. If the insurance had been in the name of Kane, for the benefit of those whom it might concern, then the plaintiff, having the interest in the thing insured, could recover. If the money was paid over to Kane, then it would be money in his hands for the benefit of Newson's representative. If a man takes the property of another, and sells it, the true owner may waive the tort, and bring an action for the value received. Here Kane took the vessel of the plaintiff, and sends her on a voyage. She is lost, and Kane received the value of the property. The plaintiff may elect to go for the value received, instead of suing Kane as a tort feasor. If an agent represents himself as owner of the thing insured, the policy will enure to the benefit of the true owner. Lanyon vs. Blanchard, 2 Campb. 597. Here Kane, being the agent of Newson, employed the defendant to effect the insurance for him. The defendant, knowing nothing of the true owner, effects the insurance in his own name, and for all whom it might concern, the insurance will enure to the benefit of the true owner. This is presisely the case of Lanyon vs. Blanchard, 2 Campb. 597. It is immaterial whether the true owner authorised,  [**41]  or knew of the insurance, he may adopt it at any time. If the vessel arrived safe, he might disavow the act; and if she was lost, he could claim the insurance. Hagedorn vs. Oliverson, 2 Maule & Selw. 485. The defendant cannot set up the invalidity of the policy to prevent his paying the money over to the true owner. Tenant vs. Elliott, 1 Bos. & Pull. 3. The letters of Kane were not offered to show, that the insurance was a valid one. If the policy was illegal, the party receiving the money under it cannot avoid the policy. The letters were offered to prove, that the fund belonged to Kane, and not to the plaintiff. Kane was not a competent witness, nor are his letters competent testimony for the defendant. If the defendant succeeds in this action, he cannot retain the money, but will be obliged to pay it over to Kane. His letters then go to establish his interest in the fund. He is substantially the defendant. Harrison vs. Vallance, 8 Serg. & Lowb. 239. Whether the verdict could or could not be used in evidence for or against Kane, yet the effect of a verdict for the defendant would be to place the fund into the hands of Kane. If the suit was by Kane against the underwriters, his letters [**42]  would be evidence as a part of the res gestae. The effect of his letters go to show that the fund does not belong to the plaintiff, but to him.

2. On the second bill of exceptions. Although this exception has been abandoned in this court by the defendant, the plaintiff has a right to the opinion of this court on it. The defendant may abandon the exception by refusing to urge any thing in support of the opinion given by the court below, and confess that that court erred in relation to it; yet as it is the plaintiff's exception, he is entitled to the opinion of this court upon it. The question, whether or not the certificate of Harding was evidence, has been answered by the defendant's counsel, who admits that it was not legal evidence. If it had been admissible, could the facts contained in it be used to prove the amount of disbursements made by the defendant before the receipt of the money on the insurance, and that he had paid them? On the state of the pleadings, the facts could not be used, for that purpose, as a set-off to the plaintiff's claim. By offering the set-off, the defendant admits, under the issue joined, that he made the assumpsit charged in the declaration, To use [**43]  it as a discount or set-off, the defendant must have pleaded it, or have given notice to the plaintiff of its being relied on at the trial.

3. On the third bill of exceptions. The question of interest is a question of law for the court, and not one of fact for the jury. Pease vs. Barber, 3 Caine's Rep. 266. Liotard vs. Graves, Ib. 234. Waddington vs. United Insurance Company, 17 Johns. Rep. 23. Anonymous, 1 Johns. Rep. 315.

4. On the fourth bill of exceptions. The bill of sale of the vessel from Kane to Newson has been proved by the subscribing witness. It was executed before the insurance was effected. By the first prayer the court was called upon to direct the jury that this bill of sale was fictitious, without any evidence to show that it was so, except Kane's letters. It was an abstract question, which the court were not bound to decide. But the proof is, that the bill of sale was a bona fide transaction. This evidence came out on the cross examination of a witness by the defendant as to Newson's declarations. As there was no evidence to impeach the bill of sale, the direction prayed was properly refused. Coale vs. Harrington, (ante 147.) If there had been no evidence [**44]  stated in the bill of exceptions, then this court might presume that such evidence was offered so as to justify the prayer. Barnes vs. Blackiston, 2 Harr. & Johns. 376. The bill of sale was to be rendered void, if fraudulent, only at the instance of a creditor.

As to the second prayer--the proof is, that when Kane directed the insurance, he acted with a view to the benefit of Newson's representative. He took possession of the vessel, the owner being dead. He became thereby executor de son tort, and as such he sent the vessel to Baltimore, and caused her to be insured. He had an insurable interest; and the presumption is, that he had the insurance effected for the benefit of Newson's representative. Hagedorn vs. Oliverson, 2 Maule & Selw. 485. There is an inconsistency in the opinions of the court below, as given in the first and in the fourth bills of exceptions. In the first the letters of Kane are admitted in evidence, and in the latter the court say the letters prove nothing.

Mitchell, on the same side. On the second bill of exceptions, as to the allowance for disbursements, he referred to Snook vs. Davidson, 2 Campb. 218. 2 Liv. on Agency, 80, 83, 103. Munford vs. Nicoll,  [**45]  20 Johns. Rep. 613. Phill. Ins. 520.

On the fourth bill of exceptions. What is the plaintiff's right to recover founded on? It is upon the receipt of the money by the defendant, as his agent, under the policies of insurance. The right of the plaintiff does not rest alone on the bill of sale, but on the actual possession of the vessel as owner. There is a consideration expressed in the bill of sale which Kane acknowledged to be a valid one, and which he cannot now contradict. It is evidence of a bona fide consideration. There are also the declarations of Newson, as made evidence by the defendant, that he was the owner, and the recognition by Kane of that ownership. The first prayer, as stated in this bill of exceptions, is founded on the evidence contained in the depositions returned under the commission; and Kane's letters are no part of the evidence upon which the prayer was founded. Riggin vs. Patapsco Insurance Company, (ante 279.) But the letters do not impeach the bill of sale; and if they do, it is not competent for a party, who has executed an instrument of writing, to come into court, and contest its validity. He is estopped from denying the title which passed under it.  [**46]  If the bill of sale was voluntary, it would make no difference as to Kane, unless he could show it was obtained by fraud or imposition; and there is no such proof here. No person, but he who is defrauded, can take advantage of it. Jackson vs. Eaton, 20 Johns. Rep. 478. There is no privity between the defendant and Kane, so as to justify the former in setting up a fraud by Newson on Kane. He was no creditor of Kane. But if he can, are Kane's letters evidence to prove the fraud? They are but the declarations of Kane, and Kane himself would not be a competent witness. Nor can Kane's death affect the case. If they were his dying declarations they would not be evidence, even if he were a competent witness. Wilson vs. Boerm, 15 Johns. Rep. 290. The declarations of a party in his own favour are never admitted in evidence. The letters, therefore, are incompetent to impeach the bill of sale. 2 Phill. Evid. 62, 219. Roseboom vs. Billington, 17 Johns. Rep. 187. Fairlie vs. Hastings, 10 Ves. 123. Whether or not the defendant was the agent of Kane, the court did not take into consideration. They said that no evidence was admissible to prove that the bill of sale was collusive, and intended to defraud [**47]  Kane's creditors. What was it to the defendant whether the bill of sale was fraudulent or not? He was not a creditor, and none but creditors could prove the fraud, and take advantage of it. In the second prayer the defendant relies upon his own order for insurance, and that the insurances were effected in pursuance of that order. If the suit had been by Kane against the insurers, the defendant would have been a competent witness for Kane, and he might or might not use Kane's letters to show his agency. The defendant, instead of naming his principal in the policies, describes him; this is as sufficient as if he had named him. But when the person described, the owner of the vessel, comes forward, he is denied by the agent. Who was the person for whom the defendant made the insurance? It was the owner of the vessel; and who is the owner? Not Kane, but Newson. What is the legal import of the words used in the policies, "for whom it may concern?" It imports the person having an interest in the thing insured. They have a technical meaning. But the evidence offered denied the policies, and denied the name of the owner of the thing insured. It denies that the owner was Newson, but that it [**48]  was Kane. The defendant, by the evidence, denies his principal, who was the true owner, and that true owner was Newson. The defendant may say that he was mistaken as to who was his principal; but he cannot shield himself under such a defence. Let him go into equity to reform the contract. At law it is binding upon him. What he intended to do, and what he did do, are different. He may have intended to insure for Kane, but he insured for the owner, and Newson was the owner. "For whom it may concern," means the person who has an interest in the thing insured. Seamans vs. Loring, 1 Mason's Rep. 128. Lyman vs. United Insurance Company, 17 Johns. Rep. 377. S. C. 2 Johns. Ch. Rep. 630. If the insurance was effected for Kane, it was a void policy; for he could not bring himself within the terms "for whom it may concern." He had no insurable interest. It would be a wagering policy, if it was not effected for the benefit of Newson, and would be void per se. If Newson's representative had no interest, then the plaintiff has no claim to the money. As to wagering policies, he referred to Goram vs. Sweeting, 2 Saund. 201, (and notes.) Wolff vs. Horncastle, 1 Bos. & Pull. 320. A contract of insurance,  [**49]  is a contract of indemnity. 1 Phill. Ins. 4, 26, 29. There is no evidence that Kane had an insurable interest; and if he had none, he could not insure on a valid policy. It would be a wagering policy, and therefore void. To give effect to the policies of insurance in this case, they must be construed as effected for the benefit of Newson. Cousins vs. Nantes, 3 Taunt. 521. They will protect the interest of Newson if there was no mistake; and there was no mistake, for the underwriters insured for the benefit of the true owner. If the defendant intended to insure for the benefit of Kane, that fact cannot be proved by parol evidence--the policies being for the benefit of those whom it might concern--the true owner. To reform the contract for mistake, it must appear to be the mistake of both parties; and here there is no evidence that the underwriters were mistaken as for whose benefit the insurances were made. They have not complained, but have acted under their contracts; and have admitted that the policies covered an insurable interest, by paying the money on the loss of the vessel, to the defendant, as the agent of the person interested. Parol evidence is not admissible to prove a mistake.  [**50]  Lyman vs. United Ins. Company, 17 Johns. Rep. 377. S. C. 2 Johns. Ch. Rep. 630. Gillespie vs. Moon, 2 Johns. Ch. Rep. 585. Graves vs. Boston Marine Insurance Company, 2 Cranch, 419. Phill. Ins. 5, (note.) The defendant knew, from Kane's letters, that Newson was the owner of the vessel; and when he applied for insurance he did not state on whose account he wanted the insurance. Kane did not direct in whose name the vessel should be insured; and the insurers never saw Kane's letters. Who is to say that the letters of Kane were written at the time they purport to bear date? Where are the defendant's answers to those letters? The letters cannot be evidence that the insurances were effected by the defendant as the agent of Kane. 1 Phill. Evid. 426, 427. The defendant cannot prove his agency by letters. Where an agent sues, he is the contracting party on the instrument. He must aver the interest, and it must be proved. It is not necessary that an agent should know his principal, in order to act for him. It is for the principal to sanction the acts of his agent. Routh vs. Thompson, 13 East, 277, 282, 285. Phill. Ins. 519. Here the plaintiff has adopted the agency of the defendant, and in [**51]  due and legal time. The acts of an agent may be ratified, as in this case, after he has received the money under an insurance effected for the benefit of his principal Lanyon vs. Blanchard, 2 Campb. 597. Hagedorn vs. Oliverson, 2 Maule & Selw. 490. Stienback vs. Rhinelander, 3 Johns. Cas. 269, per Kent, Ch. J. Phill. Ins. 59, 519, 520. Snook vs. Davidson, 2 Campb. 218.

Wirt, (Attorney General of U. S.) for Douglass, in reply, on the fourth bill of exceptions. 1. The objection is, that the defendant had no right to make the first prayer--there being no evidence, leading to the belief that the bill of sale was collusive, and that the court cannot be called on to give an opinion on an abstract question. If there was any proof going to show that the bill of sale was collusive, whether it was conclusive or not, the defendant had a right to call on the court for its opinion. There was evidence bearing on the point, on which the defendant relied in obtaining the opinion of the court, that the bill of sale was collusive. This evidence is the letters of Kane--the order for insurance--the policies of insurance--the proof of loss--the deposition of Harding, and the bill of lading and bill [**52]  of sale referred to in Harding's deposition. All this evidence appears in the fourth bill of exceptions, upon which the prayer was founded. He then went into an examination of the testimony taken under the commission, and commented upon it. He insisted that the proof went to show that the vessel was not an American vessel. 2 Vol. Laws of U. S. 113. Kane's letters were offered to show that the defendant acted as his agent. They show in what light Kane presented himself as principal and owner of the vessel--that he assumed the character of owner, and as such constituted the defendant his agent to effect the insurance. There was sufficient evidence to justify the prayer being submitted to the court; and such a prayer may be offered for the court's opinion, without any evidence being stated. Barnes vs. Blackiston, 2 Harr. & Johns. 376. If the bill of sale was in fraud of the public laws, then any person may take advantage of it; and here was a fraud attempted on the public, and to evade the laws of the United States. It was an attempt to obtain a registry of the vessel as American, contrary to the laws of the United States. In showing the bill of sale to be fraudulent, there is a distinction [**53]  between a plaintiff and defendant. The defendant here is not on the same footing as Kane would be were he the defendant. How stands the defendant in this action? He is said to be a stakeholder. In September 1817 Kane died, and the loss did not occur until December 1817. The whole money was received by the defendant in March 1818. Did he receive the money as agent of Kane? A dead man can have no agent. Whose agent was he when he received the money? An administrator is the representative of the creditors of the deceased; so that when the money was received it belonged to Kane's creditors. It would be competent for Kane's creditors to show in equity that the bill of sale was made to defraud them; and if they could, Kane's administrator, in like manner could, on behalf of the creditors. The defendant then held the fund as belonging to the administrator of Kane, representing the creditors. He could make the same defence, and contest the bill of sale on the same evidence, which Kane's administrator could. The defendant is then for this purpose to be connected with Kane's administrator and creditors, and not with Kane himself. The assignees of a bankrupt may avoid a fraudulent deed of the [**54]  bankrupt. But it has been said that there is no proof that there were any creditors of Kane. The instruction of the court to the jury assumes that there were creditors; and that the defendant, in right of the creditors, could not give the proof in evidence. The bill of sale, besides, is not according to the directions of the act of congress, which points out how a transfer of an American vessel shall be made. 2 Vol. L. U. S. 113. and 4 Vol. L. U. S. 261.

2. As to the second prayer, as stated in this bill of exceptions. Admit that the defendant insured for whom it might concern, and that Kane had no interest. If he could not recover, neither could Newson. In such a policy by an agent, no person can recover, but by showing--1. That he has an interest; and 2. That the policy was made for his benefit. To prove a policy was made for his benefit he must do so aliunde the instrument. "For whom it may concern," are technical words, and mean the true owner concerned in the contract. It does not necessarily follow, that by proving an interest in the thing insured, that the policy was intended for him. He who claims must prove an interest, and also that the contract was intended for him,  [**55]  and that he has adopted it. Seamans vs. Loring, 1 Mason's Rep. 128, 136. 1 Condy's Marsh. 473, (note.) Phill. Ins. 57, 59, 60. Stienback vs. Rhinelander, 3 Johns. Cas. 269. Lawrence vs. Sebor, 2 Caine's Rep. 203. Toppan vs. Atkinson, 2 Mass. Rep. 365, 369. In his declaration he must aver that the insurance was effected for his benefit, and on his account. Bell vs. Ansley, 16 East, 141. Cohen vs. Hannam, 5 Taunt. 101. Grant vs. Hill, 4 Taunt. 380. Here the plaintiff must prove he had an interest in the vessel insured; that he authorised the defendant to act for him as his agent in effecting the insurance; that the defendant intended to act, and did act for him as his agent; that the contract was intended for his benefit, and on his account, and that he adopted it in due and reasonable time. In fact, he must prove in this action what he would be bound to prove if he had brought an action against the underwriters. The doctrine of adoption and ratification go upon the ground that the contract was intended for the party, and that he adopted it; but he cannot adopt what was not intended for him, or his benefit. Phill. Ins. 61, 519. Here the defendant did not intend to act for Newson. 2 Park,  [**56]  409, 410, 411. But it has been urged, that although the insurance was not intended for Newson, yet being made "for whom it may concern," he may come in and claim. This is not the law; he cannot come in unless the defendant intended to insure for him. Hagedorn vs. Oliverson, 2 Maule & Selw. 485. Wolff vs. Horncastle, 1 Bos. & Pull. 316. Lucena vs. Crauford, 3 Bos. & Pull. 75. Routh vs. Thompson, 13 East, 274, 284.

As to the right of adoption. Within what time must it be exercised? It need not be before the loss; it may be afterwards. But it cannot be after the insurance has been paid. Phill. Ins. 61. The act must be adopted while the transaction is in fieri, and not after the question has been settled. The party adopting must come in and encounter some of the expense; and cannot lie by, and appear after the question has been decided. The question tried is, whether it is his contract or not. The question of adoption did not arise in Lanyon vs. Blanchard, 2 Campb, 597; the question there was a question of lien. How can a man ratify an act done by another for the benefit of a third person? It requires the concurrence of two minds.

Here the policies are for the benefit of an unnamed [**57]  person. It is a latent ambiguity, and may be explained by parol evidence; and Kane's letters are evidence for that purpose. 3 Starkie's Evid. 1002, 1021, 1023, 1024. Mechanics Bank of Alexandria vs. Bank of Columbia, 5 Wheat. 336. The plaintiff forces the inquiry, how the money came into the hands of the defendant? He must look to the policies of insurance, and to Kane's letters. They would be evidence against the underwriters, and they are evidence in this action. Put the letters out of the case, and what is the plaintiff's right to recover? He has no colour of title. Suppose he had sued the insurers, he must have proved the policies were made for his benefit. As to the prayers made by the defendant in the court below, this court are referred to Routh vs. Thompson, 11 East, 428. But it has been said that Kane took the vessel as a wrong-doer--suppose he did, the plaintiff has no right to call upon the defendant to answer for the acts of Kane. He cannot give up the tort, and go for the money in the hands of the defendant. This action being for money had and received cannot be sustained against the defendant. He did not receive the money which had belonged to Newson. It must have been [**58]  Newson's money before the defendant received it, to enable the plaintiff to recover. When the defendant received the money, Newson was dead. In Tenant vs. Elliott, 1 Bos. & Pull. 3, the insurance was effected by the plaintiff in the action; and it was his contract. It is not, therefore, a parallel case with the present. See also Grant vs. Hill, 4 Taunt. 380.  

JUDGES:
Argued before BUCHANAN, Ch. J. and EARLE and STEPHEN, J.  

OPINIONBY:
BUCHANAN 

OPINION:

 [*448]  BUCHANAN, Ch. J. delivered the opinion of the Court. These are cross appeals from the judgment of the Baltimore county court in a suit originally instituted by Roswell L. Colt, administrator of Samuel Newson, against George Douglass, to recover the amount received by him on account of certain insurances effected on the ship Mohawk, and are presented to this court on four bills of exceptions taken at the trial; the three first on the part of the plaintiff below, and the fourth on the part of the defendant.
The two appeals having been discussed together before this court, they will be considered as if they were consolidated and formed but one case, and the parties treated as plaintiff and defendant. And the [**59]  admissibility in evidence of the letters from Archibald Kane to Douglass, which are introduced into the fourth bill of exceptions, constituting also the subject of the first exception, the first and the fourth exceptions will be examined in connection.
The admissibility of these letters is resisted for different reasons; first, on the ground that Kane, if living, could not have been received as a witness to sustain the issue on the part of the defendant, by proving that the property in the ship was his, and that he directed the insurance for his own benefit; and that 

 [*449]  his declarations, whether oral or in writing, are not competent for the purpose of establishing what he himself could not have been permitted to prove. The answer to which is, that however true, as a general position, it is not applicable to this case.
The letters of Kane were not offered or admitted in evidence as his mere declarations, or with a view of proving property in him at the time the insurances were effected, but for the purpose only, as is stated in the bill of exceptions, of showing by what authority Douglass, the defendant, procured the insurances to be [**60]  made, and that he acted as the agent of Kane in these transactions, without affecting any question of property or right in Kane to the vessel insured; and it is very clear, that that which is not evidence for one purpose, may be for another, and when offered to prove that for which it is competent, must for that purpose be received.
Kane might, without any insurable interest in the vessel, have caused her to be insured, and have constituted the defendant his agent for that purpose; which fact of agency, unconnected with the question of property or insurable interest, the defendant was competent to prove by the best evidence the nature of the case would admit of; and that best evidence was the correspondence authorizing and directing the insurance.
The agency of the defendant was a fact connected with the matter in controversy, but in no otherwise affecting the plaintiff than as the existence of that fact affected the nature of the transaction which gave birth to the suit, and not as concluding the rights of the plaintiff, or establishing the interest of Kane.
It is not understood as being denied, that the defendant might have been permitted to prove, that in effecting [**61]  the insurances he acted as the agent of Kane; and how else should that agency have been proved than by the production of the letters themselves by which it was created?
If they were not letters authorizing and directing insurance to be effected, but merely reciting or speaking of a pre-existing agency, and depending for their effect on the credit of Kane, the objection would have assumed a different character; but as it is, the first ground of objection cannot be sustained. And looking to the cases of insurance, reported in the books, it will be found to be the common, the every day practice, to admit 

 [*450]  such testimony for the purpose for which it was offered and received in this case. And besides, that it is not opposed to any settled rule of evidence, the very nature of such transactions requires it; it is essential to the great operations of commerce between the different and remote sections of the world, which are, and must to a great extent, be carried on through an epistolary medium.
But it is supposed that the general terms of the policies of insurance of "George Douglass, for account of whom it may concern," &c. mean any and every body having an interest [**62]  in the thing insured; and with that understanding of the policies, it is further contended, that these letters, (showing that the insurances were procured under authority derived from Kane,) were inadmissible, as tending to contradict the policies, which on the face of them, are for the benefit of all who may have any interest in the ship, by showing that they were effected for the benefit of Kane alone. If that were admitted to be the true meaning of the terms of the policy, it would by no means follow that the objection to the admissibility of the letters, arising merely out of that construction, could be sustained.
They were not used for the purpose of proving any interest or property in Kane; but if they had been, and were free from other objections, what was there to exclude evidence of property in him, and that he was the only person concerned in interest in the insurances? The policies being "for account of whom it might concern," evidence of who was in fact concerned, could not surely be contradictory to the policies. On what principle does the plaintiff seek to recover from the defendant the amount insured, other than that the ship belonged to Samuel Newson [**63]  , his intestate, at the time of his death, and that the insurances were for the sole benefit of his representatives? And if evidence, that the insurances were obtained for the benefit of Kane, was inadmissible, as being contradictory to the terms of the policies, on what ground could proof be received that they were effected for the benefit of Newson's representatives?
But "whom it may concern" is a technical phrase, common to policies of insurance, and is understood to mean, not any and every body who may chance to have an interest in the 

 [*451]  thing insured, but such only as are in the contemplation of the contract. Such a policy supposes an agency, and proceeding upon that ground, looks only to the principal in whose behalf, or on whose account, the agent moves in the transaction; and he, for whose benefit the insurance is procured, is the person in the contemplation of the contract--is he, whom it alone concerns.
The inquiry, therefore, in such cases, always is for whose benefit, on whose account, was the insurance obtained, and that not appearing upon the face of the instrument, is a proper subject of extrinsic evidence, which comes in aid of the policy, by pointing [**64]  out the person to whom it is applicable, the party who is in fact concerned. And this is not confined to policies of insurance; but in the application of every instrument of writing, evidence aliunde is necessarily used to designate the proper subject matter to which it relates. The letters of Kane, therefore, were properly admitted in evidence, for the purpose of showing that the defendant effected the insurances as his agent, and under authority derived from him; which disposes of the first exception, leaving the question of property in the ship, and the intention of Kane, at the time of directing her to be insured, to the effect and operation of the other evidence in the cause.
It is well settled, that where a policy has not the general clause contained in this, or one of similar import, none can avail themselves of it but those who are named as the parties insured, or on whose account it is expressed to be made.
But it is equally clear, that a policy in the name of one, with the general clause "for whom it may concern," will cover and protect the interest of any person for whose benefit it was intended, and who authorized it to be effected. And if in the absence [**65]  of any express order or authority from the owner, or any previous communication with him upon the subject, such policy is effected in his behalf; the intention at the time of the party effecting it to cover his particular interest, will so connect him with the policy as that his adoption of it afterwards will cause it to enure to his benefit. The subsequent adoption of a policy by a party interested, and for whose benefit it was intended, 

 [*452]  being deemed equivalent to his prior order for insurance. On this principle the cases of Routh vs. Thomson, 13 East 274, and Hagedorn vs. Oliverson, 2 M. & S. 485, were decided.
If then, Newson at the time of his death was the owner of the ship Mohawk, and Kane, when he gave the order for insurance to the defendant, did it with reference to the interest of Newson's representatives, and intended the insurance for their benefit, the policies, on being adopted by the plaintiff, would enure to his benefit, and Kane, if he had received the amount insured, would have been answerable over to him; and so with the present defendant into whose hands it has come. Or, if the money had not been paid by the [**66]  underwriters, actions might have been maintained against them on the policies for the present plaintiff, on proper averments in the declaration of his interest, &c. And the circumstance that the policies were effected by the defendant, under the authority of Kane, makes no difference; acting as his sub-agent, they enure in the same manner that they would have done if they had been effected by Kane himself.
The second prayer, therefore, in the fourth exception, was properly rejected, the plaintiff's right to recover being assumed by the terms of that prayer to depend, not on the intention of Kane at the time of giving the order for insurance, but to rest entirely upon the understanding and intention of the defendant. And if it had been granted, the jury must have given a verdict for the defendant, on being satisfied that he effected the insurances as the agent, and for the benefit of Kane, even though they should have believed, from the evidence in the cause, that Kane himself had in contemplation the interest of Newson's representatives, and intended the insurance for their benefit.
But if Kane did not give the order for insurance with reference [**67]  to the interest of Newson's representatives, but intended it for his own benefit, and not theirs, then the plaintiff is not entitled to recover. For no one can, by subsequent adoption, avail himself of such a policy, who was not at the time in the contemplation of the party procuring the insurance, and for whose benefit it was not intended, notwithstanding any interest he may have had in the 

 [*453]  thing insured. The policy not being effected with reference to his interest, his interest was not insured, and he of course not concerned in the transaction.
In the opinion of this court there is nothing in the first prayer contained in the fourth bill of exceptions.
If the bill of sale from Kane to Newson, under which the plaintiff claims, was in fact fictitious, and intended to defraud the creditors of Kane, it does not lie in the mouth of the defendant, standing in the place of Kane's representatives, to set up that fraud in bar of the plaintiff's recovery, however unclean the hands of Newson may have been.
As to the second exception, it is conceded by the counsel for the defendant, that there was error in permitting the certificate of Harding [**68]  to be read to the jury. It is not to be distinguished from any other mere declaration, in writing, of a third person, of the existence of a particular fact, which from its character can only be proved by the testimony of the witness himself on oath; and was clearly inadmissible, and most probably was admitted by inadvertence.
The question of interest, arising on the third exception, is one of frequent occurrence in the books, and has been found to be a subject not susceptible of the application of any fixed and general rule of law, the dealings between man and man being so various in their nature, that scarcely two cases are to be met with presenting the same aspect, but each depending upon its own peculiar circumstances.
There are indeed cases, not to speak of bonds, &c. in which interest is recoverable as of right. Such as on a contract in writing to pay money on a day certain; as in the case of a bill of exchange or a promissory note, or on a contract for the payment of interest, or where the money claimed has actually been used. But with such exceptions, it has long been the settled practice of the courts of this state, to refer the question of interest entirely to the jury,  [**69]  who may allow it or not in the shape of damages, according to the equity and justice appearing between the parties, on a consideration of all the circumstances of the particular case as disclosed at the trial.
The court below, therefore, did right in refusing to give the 

 [*454]  direction prayed, and in submitting the question of interest to the jury.
But because the certificate of Harding was suffered to be read in evidence to the jury, as stated in the second bill of exceptions, the judgment of that court must be reversed
Before judgment was entered in either case, the appellant's attorney dismissed the appeal made by Colt.
COLT'S APPEAL DISMISSED.
On the appeal by Douglass.
JUDGMENT AFFIRMED.  

15 of 33 DOCUMENTS 

BOSLEY vs. M'KIM.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

7 H. & J. 468; 1826 Md. LEXIS 54 

December Term, 1825, Argued 

June, 1826, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court, sitting as a court of equity. The bill in this case was filed by the appellee for an injunction to prevent the appellant from obstructing a certain alley, and debarring him from the use of it. The bill states, that Elizabeth Lawson, since deceased, being entitled to, and seized in fee simple of and in a parcel of ground, lying and being in the city of Baltimore between what are now called Holliday-street and Belvidere (formerly North,) street, caused the same to be divided into lots and alleys, for the benefit thereof, and a plot of the whole to be made, with a view to expose the same to sale, in or about the year 1809, of which division, the plot, or diagram, exhibited, (marked A,) is a true representation. That on or about the 1st of December 1809, the said Elizabeth Lawson, by her agent Charles Brown, caused the said lots, or some of them, to be set up to public auction, the said agent attending the same, together with Henry W. Rogers, attorney at law, on the part of the said Elizabeth; that at the said sale, which was made and conducted by Thomas Yates, an auctioneer of the said city, Jacob Myers, became the purchaser of the lot number one,  [**2]  and of the lot number thirteen, with an understanding, that the portion of the north and south ten feet alley, intervening between the said two lots, should be included in his purchase, and that he should have the same right and title to that as to the lots themselves; as will appear by the deed for the same, to Myers. That at the said sale, James Bosley, (the appellant,) became the purchaser of the lots number two, and number fifteen; that John Small became the purchaser of lots number three, four and fourteen; and that Samuel and Walter Farnandis became the purchasers in common, of the lot number five; all of which last mentioned lots, bounded on the said north and south ten feet alley. The bill further charges, that although the said lots had been divided, and the said alleys planned, as shown in exhibit A, and had been accordingly laid down in a plot which was produced at the said sale, it was distinctly announced and explained at the sale, that the purchaser of the two southernmost lots number one and number thirteen, would have the advantage of building over the alley, which on the plot interposed between them, and that this advantage was one of the inducements with Myers to [**3]  become the purchaser of both, and enhanced the price of, and multiplied bidders for them. That at the said sale, the auctioneer, or some of the persons present, on the part of Mrs. Lawson, in pursuance of the said explanation, connected the said two southernmost lots as laid down on the said plot, and purchased by Myers, by continuing the east and west lines with a black-lead pencil, across the said ten feet alley, so as to make one lot of the two southernmost lots, and the intermediate portion of the said alley. That the said north and south ten feet alley was designed for the accommodation of the purchasers of the lots bounding thereon, as a way or passage, and as an outlet for rain water, and other similar purposes, through the ground of the said Elizabeth Lawson, down to Jones's Falls, and that there was no outlet at the south end of the said alley, which was met by the lot of John Carriere, as shown in exhibit A; that, therefore, the continuance of the alley between the lots number one and number thirteen, purchased by Myers, could be of no importance or value whatsoever, to any of the purchasers of the lots bounding on the other, or lower portion of the alley; and that this consideration [**4]  enabled the auctioneer, and those acting for Mrs. Lawson at the sale, to represent and sell, at a better price, the lots number one and thirteen, and the intermediate part of the projected alley, as one lot, and to one person, without any prejudice to the purchasers of the other lots, who, moreover, must have known, in the course of the sales, what was so as aforesaid announced and explained as an advantage connected with the said upper or southernmost lot. That Bosley, sometime after the said sale, received from John Small, an assignment of his purchases aforesaid; and that on or about the 16th of December 1811, deeds of conveyance were prepared and executed to Myers, to Bosley, under his own purchases, and also as assignee of Small, and to Samuel and Walter Farnandis, which were duly acknowledged and recorded among the land records of Baltimore county. That these deeds were prepared by the said Henry W. Rogers, who was present when the said sales were made, and knew the extent, nature and terms, of the said several purchases, and acted as agent or attorney of Mrs. Lawson; that the deed to Myers, (which is exhibited marked E,) corresponds precisely with the statement, herein before [**5]  made, relative to the portion of the north and south ten feet alley, intermediate between the lots number one and thirteen, which it includes within the metes and bounds expressed in it, as a part of Myers's purchase and title; for it professes to begin for the said purchase on the west side of Holliday-street, at the distance of 319 feet northerly from the intersection of the northwest corner of East and Holliday-streets, thence to run easterly, parallel with East-street, and binding on the north end of Holliday-street, 35 feet to Back-street or Holliday-street united, thence north, binding on Back-street or Holliday-street united, 31 feet, to lot number two, purchased by Bosley, thence west, parallel with East-street, and binding on lot number two, running 187 feet to North-street, (now Belvidere-street,) which crosses the said alley, thence south, binding on North-street, (now Belvidere-street) 31 feet, thence east with a straight line to the beginning, (which again crosses the said alley,) "with the privilege of an outlet through a ten feet alley at the back of lot number two;" so that the whole south end of the projected alley, lying between lots number one and thirteen, was comprehended [**6]  in, and passed in full property by the said conveyance, in the same manner, and to the same extent and effect, as the lots themselves, and the whole were conveyed as one lot, described by the above recited outbounds, and the terms in which the privilege of the outlet through the ten feet alley is granted by the said conveyance, are in strict conformity with the aforesaid metes and bounds, given of the ground, intended to be conveyed, since the privilege is made to apply only to the alley, as having its first existence on the south, at the back of lot number two. That while the metes and bounds of the deed to Myers, comprehended the intervening portion of the ten feet alley, and the description of the privilege of the outlet through the alley corresponded with the conveyances to Bosley and Samuel and Walter Farnandis excluded the other part of the projected alley, and bounded their several lots upon it, and did not even give in their terms, the privilege of the said alley as an outlet, however the grant of it may be implied from the expressions actually used by way of reference to the alley, as laid out and existing, and as bounding their lots. That Bosley afterwards purchased a part,  [**7]  (with a front of seven feet on Holliday-street) of the lot, so bought by, and conveyed to, S. and W. Farnandis, which part is particularly shown in exhibit A, and which was conveyed by them to Bosley, by deed bearing date the 31st of July 1812. The bill further states, that very soon after the sales, to wit, in the spring of 1810, Myers begun to build a valuable dwelling-house, with extensive back buildings, on the said lot, and completed the same within about a year from its commencement, of which the kitchen covered all but three feet of the said part of the north and south ten feet alley, included as aforesaid within the lines of his purchase and deed, and the said three feet were covered by a continuation of the building for other purposes. That Bosley was not only apprised of the commencement and progress of the said buildings, as he lived in Baltimore, and could not fail to know it, but constantly saw, and actually witnessed the same, and not only made no objection whatever thereto, but built at the same time a dwelling-house on his adjoining lot, number two, which is now standing, and shared in the expense of the party wall between his said house and Myers's, and countenanced [**8]  and concurred in the said acts of Myers. That S. & W. Farnandis, also knew of the commencement and progress of the said buildings by Myers, and did not object thereto, or allege any right to, or interest in, the said part of the said ten feet alley. That Myers, being so entitled in law and in equity to the whole of the ground comprehended within the metes and bounds of his said purchase and deed, including the said part of the said projected alley; and having, under the fullest conviction, and in the assertion of such his title, and with the knowledge, and even the concurrence of Bosley, and with the knowledge and implied assent of S. and W. Farnandis, built upon the same, actually resided in the said house with his family, and used and occupied the same, and the other buildings and improvements on the said lot, for three or four years, or more, without any objection being made by Bosley or S. & W. Farnandis, who were fully acquainted with their own rights, whatever they might be to the covering with his said buildings the said part of the ten feet alley; but that in or about the year 1815, Bosley, in his own name, and in those of S. & W. Farnandis, for the first time questioned the [**9]  right of Myers so to cover with his buildings the said part of the alley, and began to threaten to disturb him in the occupation thereof, and insisted that he could make him pull down, and take away, such portion of his said buildings or improvements as were placed upon the alley, in virtue of a right in himself, or on himself and S. & W. Farnandis, to the use of the said part of the said alley; and soon afterwards Bosley began to obstruct the communication between the said buildings and lot of Myers, and the alley, by a mound or wall, which, however, Bosley the same day removed, admitting that he could not lawfully persist in such obstruction; but he, Bosley, continued to assert that he could compel Myers to open the alley through his said buildings, and alarmed Myers with groundless fears for his title to the said part of the said alley, and for his buildings thereon erected; until at length Myers was induced by Bosley, his conduct and representations, to doubt his own unquestionable rights, and mistake the value of the pretences of Bosley, and, being anxious to avoid a law suit, and being somewhat indifferent to the enjoyment of a right of passage along the said alley, and being,  [**10]  moreover, assured by Bosley, that the water issuing from his said buildings and lot, through the said alley, should not be stopped, unless it became a nuisance, he consented to a proposition made by Bosley, that he, Myers, should give up his interest in the said ten feet alley, and in the other ten feet alley, (shewn in exhibit A, and running east and west,) to Bosley and S. & W. Farnandis, in consideration of their securing his title by a release or conveyance to that part of the said alley on which his buildings and improvements stood. Whereupon a deed was prepared to that effect, (to which Myers and Bosley, and S. & W. Farnandis, were parties,) which was acknowledged, and recorded in Baltimore county court, and marked Exhibit F. That the sole consideration of the release, or surrender or transfer, of the indisputable interest of Myers, in the said alley, to Bosley and S. & W. Farnandis, (as sufficiently appears by the deed itself,) was the reciprocal release or transfer of the pretended right of Bosley and S. & W. Farnandis, to the said part of the said originally projected alley, built upon as aforesaid, by Myers, which right Myers was made to apprehend, might be used to the great [**11]  injury, and even destruction of his valuable buildings, and the great diminution of the value of his lot; whereas the said alleged right, or any right whatever, in Bosley and S. & W. Farnandis, had no existence, but was a mere fiction, and, therefore, that the said release or surrender, or transfer, by Myers, was without any real consideration, although Myers erroneously believed, and was persuaded to believe, that it was otherwise; and moreover, not only was the said surrender, or release or transfer, without consideration, and the result of mistake and misapprehension on the part of Myers, of his own rights, and of those of the other parties aforesaid, but that it was obtained by Bosley by threats of putting his unfounded claim in execution, and produced by fears on the side of Myers, and of menace and management on the side of Bosley, resorted to for the purpose of alarming and misleading Myers. That the confidence of Myers in the above mentioned assurance of Bosley, that the water from his buildings and lots should not be stopped unless it produced a nuisance, contributed to influence his mind to agree to the said proposal of Bosley, and to become a party to the said deed. The [**12]  bill also states that the said deed, between the said parties, did not in law pass as a grant from Myers, since the interest (as an incorporeal hereditament or however else,) of Myers in the said alley, below or to the north of his lot, was appendant to his interest in the lot itself, and without a transfer of the lot, to which it was annexed, could only pass to the owners of the soil of the said alley, the representatives of Elizabeth Lawson, by a release or surrender; and that if considered as a contract merely, neither Bosley nor S. & W. Farnandis can derive any right to it at law, other than a right of action against Myers, (if ever that could be maintained,) and in equity no right of any sort, especially a right to lay rubbish and obstructions upon the said alley in which they could have nothing more than an easement. The bill further states, that in the year 1816 the complainant bought the said house and lot from Myers for a very large sum of money, and on the 7th of November, in the said year, received from him conveyance thereof in fee, with the appurtenances, which conveyance was duly acknowledged and recorded That when he so bought the said house and lot, he was told by Myers,  [**13]  that the water could not be stopped from flowing through the said alley, by Bosley or S. & W. Farnandis, unless it should become a nuisance, and he received the said house and lot upon that confidence, which he found to be encouraged by the fact, that during the whole occupation of Myers, which he thinks continued until some time in the year 1817, the water was never prevented from flowing from the said house and lot through the said alley. That for sometime after his said purchase of the said house and lot, (of which he took immediate possession, and in which he has ever since resided with his family,) he never heard an idea intimated by Bosley, or any other person, that the flowing of the said water could be stopped; but that in or about the spring of the year 1821, Bosley mentioned to the complainant that he had a right to the said alley by a contract with Myers, or something to that effect, to which the complainant replied, that, at any rate, he could not obstruct or prevent the flowing of the water through it, from the complainant's lot, if it did not become a nuisance, or to that effect; and Bosley did not then press the subject any farther, and did not afterwards do so until [**14]  very lately, when he began to insist upon his right wholly to prevent the flowing of the said water along the said alley; and, upon the complainant's refusing to acknowledge such right, he proceeded, in violation of his aforesaid assurance to Myers, upon which the complainant, as well as Myers, had relied, and without any color of law or justice, to erect obstructions across the said alley, in contact with the wall of the complainant's said house, where the water issues into the said alley, which the complainant caused to be peaceably removed; but Bosley, within a few days past, to wit, on the, &c. still persisting in his determination wholly to prevent the flowing of the water from the complainant's said house and lot, through the said alley, hath made another obstruction to the same, covering the head of the said alley, in its entire breadth, with stones, and sand, and rubbish, strewed in and extended in length down the said alley of about twenty or thirty feet, and in thickness or height about two feet, against and touching the said wall of the complainant's house, and having no other object, and answering no other purpose, but to produce the said obstruction, and being of no, or [**15]  inconsiderable value in themselves, and of as much value in themselves, if removed from their present position, as there: which obstruction Bosley caused to be made by a great number of sailors, and others, who, with Bosley, appeared resolved to accomplish their said work forcibly if any attempt should be made to interfere with them; and all this has been done by Bosley, without any authority from S. & W. Farnandis, or James Biscoe, who purchased from them, and now resides in a house built on the aforesaid lot of S. & W. Farnandis, or from any other person, he, Bosley, claiming to himself a right to use the said part of the said alley (at the back of his house and lot, number two, herein before mentioned,) as if he had full property in the soil thereof, and not a mere right of passage over it, and of use to it as an alley, or as if he only had that right of passage and use, or in the assertion of such a right, could do an act, which, as far as it goes, destroys all passage, and amounts, as the complainant is advised, to a trespass upon the owners of the soil of the alley, and an usurpation upon the other claimants of the same right in the same alley. The bill further states, that the [**16]  flowing of the waters from the complainant's building and lot has been so far from producing any nuisance in the said alley, that it has produced no material inconvenience to any person; that the water has lately flowed, as it did for years before, consisting almost wholly of rain water, and free from impurities in a far greater degree than is usual in such cases. That, independently of the water which has flowed from the complainant's said house and lot, until interrupted as aforesaid, the water from the house and lot of Bosley, and from the other lots upon the said alley, has always flowed, and still does flow, through the same, to all which the addition of the water from the complainant's lot, could be of no great importance, or make a nuisance where there was none before, and that even before the said lots were sold, and built upon, the ground of the said alley, and the contiguous ground was, as the complainant believes, the conduit of the water from his lot to the Falls. That the obstruction of the course of the said water, by Bosley, is, and will continue to be, a serious mischief to the complainant, who has no other outlet for the said water, and has already been compelled,  [**17]  by the said obstruction, to sink wells in the yard to receive the rain water, which otherwise would flow into his cellars, and be greatly injurious to his property, and the health of his family, and from those wells, it would be necessary, if much water should accumulate in them, to convey it by buckets, or some such inconvenient mode, into the street, and through his house; and if the accumulation should be rapid, even that would be ineffectual. That before the making of the last mentioned obstruction, he had offered to Bosley to refer the dispute, which his former attempt to prevent the flowing of the water from the complainant's house and lot through the said alley had produced between them, to the decision of any three intelligent persons, either lawyers, or others, and the complainant was induced to suppose that this overture would be accepted; but it soon appeared that Bosley was bent upon asserting his fancied right, and would listen to no proposals having friendly adjustment for their object. That the complainant endeavoured, at the time of the making of the said last mentioned obstruction, to prevail upon Bosley to desist therefrom, and well hoped that he would have done so.  [**18]  But that he persists in his determination to obstruct the flowing of the said water as aforesaid, and threatens to continue to do so, although he has no right whatever to lay accumulations of stones, and gravel, and sand, upon the surface of the said alley, or other rubbish, in which he has not any property whatever, nor even a right of way but by an indulgent interpretation of his title papers, if indeed he has any such right, which the complainant does not admit. Prayer, that Bosley, S. and W. Farnandis, and Biscoe, may true and perfect answers make to the several matters and things in this bill of complaint contained, and that Bosley, his agents and servants, may be enjoined to remove the said obstruction, or suffer the complainant to cause it to be removed, and to forbear any attempt to renew the same, or to make any other obstruction to the flowing of the said water as aforesaid, until the further order of this court; and that the complainant may, by the decree of this court, be quieted in the enjoyment of the said alley, as alienee and assignee of Myers, and owner of the house and lot to which the use and privilege thereof are appendant, and his title thereto maintained; and [**19]  that he may have such other and further relief, as the nature of his case, and equity and good conscience require.

[SEE EXHIBIT A IN ORIGINAL]

Exhibit A. Is a plot by which Mrs. Lawson sold the property.

Exhibits B, C, D. The depositions of witnesses as to the manner and terms of sale to Myers.

Exhibit E. The deed from E. Lawson to Myers, dated the 16th of December 1811, conveying to him and his heirs, "all that piece or parcel of ground situate in the city of Baltimore, beginning on the west side of Holliday-street, at the distance of 319 feet northerly from the intersection of the N W corner of East and Holliday-streets, thence running easterly, parallel with East-street, and binding on the north end of Holliday-street, 35 feet to Back-street or Holliday-street united, thence N binding on Back-street or Holliday-street united, 31 feet to lot No. 2, purchased by Mr. James Bosley, thence W parallel with East-street, and binding on lot No. 2, running 187 feet to North-street, thence S binding on North-street 31 feet, thence E with a straight line to the beginning, with the privilege of an outlet through a ten feet alley at the back of lot No. 2."

Exhibit F.  [**20]  The deed between Bosley, S. & W. Farnandis and Myers, dated the 1st of July 1815, reciting the deed from Mrs. Lawson to Myers; her deeds to Bosley, and her deed to S. & W. Farnandis, and the deed from S. & W. Farnandis to Bosley, for part of the lot conveyed to them by Mrs. Lawson; also referring to a plot exhibited at the sale of the lots by Mrs. Lawson, delineating two lanes or alleys each of the width of ten feet, the one of them extending nearly N and S parallel with Holliday and North-streets, and at the distance of 100 feet easterly from the latter, passing through the whole extent of Mrs. Lawson's ground, to wit, from the northernmost line of the ground conveyed to S. & W. Farnandis, to the southern extremity or limits of, and passing through the ground conveyed to Myers; and the other one of the said alleys extending from North-street at right angles, easterly, and between the two parcels of ground fronting on the E side of North-street, conveyed to Bosley, to intersect the alley running parallel with Holliday and North-streets, which said lanes or alleys were, at the time of the said sale, declared to be for the use and benefit of the purchasers of the ground, then offered [**21]  for sale, and the remaining ground of Mrs. Lawson. Also reciting, that Myers had improved and built upon that portion of the alley extending from N to S, to wit, the S end of said alley, and which is comprised in the description set forth in the deed to him; "and in consideration of his agreeing to relinquish all right to the use of the residue of that alley, and the whole of the alley running from North-street as aforesaid, they the said Bosley and Samuel, and Walter Farnandis, have severally and respectively agreed to release to the said Myers, all their right and title to that portion of the said alley so as aforesaid improved and built upon by him." The said Bosley and S. & W. Farnandis did thereby, in consideration of the premises, and in consideration of one dollar a piece to them paid by Myers, bargain, sell, surrender, and forever release, to Myers, his heirs and assigns, "all the right, title, interest and claim whatever, of the said Bosley and S. and W. Farnandis, of, in and unto, all that portion of the aforementioned alley, comprised within the limits of the conveyance to the said Myers, and which hath been so as aforesaid improved and built upon by him; to have and to [**22]  hold," &c. And the said Myers did thereby, in consideration of the premises, and of one dollar, &c. bargain, sell, surrender, and forever release, unto the said Bosley and S. and W. Farnandis, their heirs and assigns, "all the right, title, claim and interest whatsoever, of the said Myers of, in and unto, the two several alleys before mentioned, and the use of them respectively, except that portion of the one of them so as aforesaid improved and built upon by him. To have and to hold," &c. The injunction prayed by the bill was granted accordingly.

The answer of the appellant, (one of the defendants below,) denies the plot exhibited by the appellee to be correct, as the alley does not run in it through the whole length of the ranges of lots. He denies the understanding, that Myers should take in the alley in his ground. He refers to the depositions of Young and Myers, accompanying his answer, to show that there was no such understanding. He asserts that the lots of Myers sold at a higher price than others, not on account of taking in the alley, but because of their larger front on Holliday-street, and being higher and better ground for building--some of the other lots requiring [**23]  piling in order to build. He believes that the alley between Myers's lots would prove a convenience in various ways. He avers that the conveyance to Myers, including the alley, was a fraud on the purchasers of the other lots; and he refers to Mrs. Lawson's bond of conveyance to Myers, given before her deed to him, in which the part of the alley is not agreed to be conveyed. He insists on his right of way by Mrs. Lawson's deeds to him. He denies that he suffered Myers to build across the alley, except on condition of his leaving an opening underneath that might be closed with gates. That Myers built over the alley, and the discharge from his lots became offensive; that Myers then showed for the first time, to the appellant, Mrs. Lawson's deed, which surprised him; that Myers then, without being alarmed or threatened by the appellant, made the exchange of his right of way for the secure right of building over the alley. He denies that he agreed to let the water run from Myers's property through the alley, longer than the time necessary for Myers to raise the yard of his house, so as to let it off into Holliday-street; and provided too, that it did not become a nuisance, in which event [**24]  it was to be shut up at the appellant's discretion. That the appellee has a better outlet for the water through Belvidere-street, and that the appellee admitted that fact before filing the bill. That the filth, &c. in the alley from the appellee's house, became offensive to the appellant's tenants. That they complained, and after sending letters to the appellee, &c. the appellant attempted to stop his use of the alley. That the water, &c was not discharged in the appellee's time as it was while Myers was owner. That Myers had it to flow through a gate, by which means the outlet, &c. could be cleaned; but it was not so with the appellee's arrangements. That in the fall of 1821 the appellee built up the whole width of the alley, and had no outlet, except through a hole in the wall, and requested the appellant to permit the water to run down the alley until he could lay pipes to carry it into Holliday-street. That when the appellee's work was done, the appellant requested him to stop the hole; but he would not--thence the obstructions by the appellant, &c. He avers that the flowing of the water, &c. from the appellee's property, was a great nuisance.

Among the several exhibits of [**25]  the appellant, accompanying his answer, is the deed from Myers to the appellee, dated the 7th of November 1816, reciting the deed from Mrs. Lawson to Myers; and in consideration of $ 18,000, Myers conveyed to M'Kim, (the appellee,) and his heirs, all that piece or parcel of ground which was conveyed by Mrs. Lawson to Myers, by the said recited deed; "subject, however, to a contract between James Bosley, and Samuel and Walter Farnandis, and the said Myers, dated the 1st of July 1815. To have and to hold," &c. "subject as aforesaid to the contract respecting said alley or outlet," &c.

The answer of James Biscoe, (one other of the defendants,) a purchaser from S. and W. Farnandis, is not material, he having no knowledge of the facts.

The answer of S. and W. Farnandis, (other defendants.) They deny the correctness of the plot exhibited by the appellee. They assert that the alley in the true plan run through the whole property. They deny that there was any understanding as to taking in the alley. They state, as Bosley does, why Myers's lots sold highest. They deny that the deed with Myers as to the alley, &c. was obtained by threats, &c. but that it was executed by him deliberately,  [**26]  and with full knowledge. They deny the pencil marks on the plot, &c.

The motion to dissolve the injunction was overruled by the county court, and the injunction continued. Testimony was taken under an agreement of the parties; and a pro forma decree passed by the county court making the injunction perpetual. From that decree Bosley, one of the defendants below, appealed to this court.  

DISPOSITION:
REVERSED.  

HEADNOTES:

L, the owner of a parcel of ground in the city of Baltimore, wishing to dispose of it, caused it to be laid out into lots and alleys, for the benefit of the lots, and a plot of the whole to be made, and afterwards sold the lots at public sale, as located on the plot, which was exhibited at the sale. M became the purchaser of lots Nos. 1 and 13, divided on the plot by a N and S 10 feet alley, and beginning, each of them, at the upper end of the alley; and B and F, and others, purchased the lots below, which were separated by the same alley, and bounded by it. L afterwards conveyed to M, not only the lots 1 and 13, but that part of the said alley which intervened between them; and M, supposing himself to have title to the soil of that part of the alley itself as well as to his lots, built upon a part of it. There was some evidence to show that it was understood at the sale that the purchaser of those two lots was also to have the intervening portion of the alley. After M's building had been erected several years B, one of the purchasers of the lower lots, began to question M's right to the alley itself between his two lots, and his right to put his building upon it; and the difference between them terminated in a deed of compromise, by which M, relinquished all right to the use of the alley below his lots to B & F, and they relinquished all their right to M, to the part of the alley between M's lots. M afterwards sold his said lots and building to J, and conveyed them to J, expressly subject to the said deed of compromise between M and B & F. After J's purchase, B prevented his using that part of the alley below his said lots 1 and 13, by obstructions placed in the same. On a bill filed by J to have those obstructions removed, and himself quieted in the enjoyment of this part of the alley, and alleging that the said deed of compromise was obtained from M, by fraud and threats, on the part of B, and in mistake of M's rights, and praying to have that deed set aside so far as it restrained M from the use of said part of the alley--Held, 1. That from all the evidence in the cause M was not to be considered as the purchaser at the original sale of the alley intervening between lots 1 & 13.

Held 2. That not having so purchased, there was a sufficient consideration for his deed of compromise with B & F.

Held 3. That even if M had legal title to the alley between his said lots, by virtue of his conveyance from the original proprietor, yet as J bought from him expressly subject to the said deed of compromise, J was not entitled to the relief he prayed.

Held 4. That although the deed of compromise might not operate at law as a transfer, of the right of the parties to it, to the use of the alley, on the ground that that right was a right of way, appendant to the lots, and could not be severed from the lots themselves; yet that in equity it would operate sufficiently to effect the design of the said parties.

Held 5. That upon the whole case J had no equity to support his application for the relief prayed by him.

There is no case in which a court of equity ever granted a perpetual injunction to a plaintiff to protect him in the enjoyment of a naked legal right, which he, or those under whom he claims, have stipulated by deed not to exercise--Per Dorsey J.

Legal rights are to be asserted by legal means; and in such cases courts of equity never lend their and where equity and justice do not imperiously demand it. Ibid.

Bill dismissed, but without costs.  

COUNSEL:
Speed, for the Appellant, contended, 1. That the deed between Bosley and Farnandis and Myers, by which Myers renounced his right to the alley, binds M'Kim, and bars his claim to the use of the alley.

2. That the said deed was fairly obtained from Myers, and for an adequate consideration.

3. That M'Kim cannot impeach the said deed for fraud or want of consideration.

4. That the court has no jurisdiction in this case.

A compromise of a doubtful right, where no advantage is taken, is a valid consideration. 1 Pow. on Cont. 363. Cory vs. Cory, 1 Ves. 19. Cann vs. Cann, 1 P. Wms. 724, Stapilton vs. Stapilton, 1 Atk. 10. Taylour vs. Rochford, 2 Ves. 284. Gibbons vs. Caunt, 4 Ves. 849. Pullen vs. Ready, 2 Atk. 592. A right of way appendant, raised by operation of law,  [**27]  may be granted; though if raised by deed it cannot. 2 Blk. Com. 35. The covenants in the deed of compromise are sufficient to bind Myers, and all claiming under him, and among others, purchasers for valuable consideration with notice, and M'Kim had notice. Finch vs. Earl of Winchelsea, 1 P. Wms. 282. Freemoult vs. Dedire, Ib. 429. Equity will prevent a breach of a covenant. 1 Madd. Chan. 159, 162. 1 Fonbl. 345, 346. The privy cannot deny the force of the covenant. Taylor vs. Stibbart, 2 Ves. jr. 437. A grant will be construed a covenant. Curtis vs. Perry, 6 Ves. 745. The deed operated as an agreement in the recitals. The agreement is evidenced by the deed, and binds the parties. 1 Pow. on Cont. 313, to 316. Cannell vs. Buckle, 2 P. Wms. 243. The deed operates as an estoppel on the privies of Myers, both as respects its validity and its effect. Litt. s. 58. Co. Litt. 352. Rawlins' case, 4 Coke, 53, 56. Ferrer's case, 6 Coke, 7. Blake's case, Ib. 44. Winchester's case, 3 Coke, 3. The court has no jurisdiction of the case--a bill will not lie in a case like this. 1 Madd. Chan. 171, 172. 1 Harr. Chan. 124, 125. Lord Tenham vs. Herbert, 2 Atk. 483. Witchurck vs. Hide, Ib. 391. Cowper vs.  [**28]  Clerk, 3 P. Wms. 156. Weller vs. Smeaton, 1 Bro. Ch. Rep. 573.

Mayer, on the same side. The appellee is the complainant, and comes into court claiming equity--To set aside a solemn conveyance entered into by his grantor, of which he had full knowledge. An alley means a right of way. The condition of sale was, that the alley was to go through the whole extent of Mrs. Lawson's property then offered for sale. No verbal declarations at a sale can control the printed conditions of sale. Sugd. 22, 23. Powell vs. Edmunds, 12 East, 6. The bill alleges that the alley is the natural course of the water. The natural course of the water only existed while the ground remained in its natural state. The owner of the soil may change the course of the water, or prevent it from flowing at all, by filling up the water course. Parol evidence is admissible to prove, by the penman of the deed, that something was omitted or inserted by mistake or by fraud. 1 Pow. on Cont. 432. Mistake in law is no ground for assumpsit; but a mistake in fact is. The deed of compromise put an end to all rights of the parties. This is not a right of way. Co. Litt. 120. It is only appertenant and grantable. Bro. Ab. tit.  [**29]  Grant, pl. 130. 2 Roll. Ab. 46. Whether grantable or not, it is not said it may not be severed. A man may exclude himself from the enjoyment of a right of way. A right of way is not considered an interest, but an easement, and is not similar to a right of common. Anon. 3 Salk. 40. Godley vs. Frith, Yelv. 159. Liford's case, 11 Coke, 47. A highway may be granted. Bro. Ab. tit. Common, pl. 27, 28. It is contended that the deed vests no right in Bosley, but it is to exclude Myers from the use of the easement--to bar him of the community of benefit. Jacobson vs. Fountain, 2 Johns. Rep. 176, Per Thompson, J. The party might, though he could not, grant the right, covenant to bar himself from the benefit of it, or not to exercise it. Though the right to exercise a trade is not grantable, yet the party may covenant not to exercise it. 2 Bac. Ab. tit. Covenant, (B) 65. A chose in action is not assignable, yet the assignment of it is a covenant. Deering vs. Farrington, 1 Mod, 113. Issue in tail cannot release his right to disseissor, but he may bind himself by warranty. Litt. s. 446. Mason vs. Muncaster, 9 Wheat. 445. Eden on Injn. 223. Co. Litt. 223, b. The appellant need not rely on the deed [**30]  of compromise as a grant, but as a covenant not to exercise a right to which M'Kim is bound, coming in as he does, under the covenantor. It operates as covenant to stand seized to uses. Rigden vs. Vallier, 2 Ves. 255. Thompson vs. Attfield, 1 Vern. 40. Crossing vs. Sudamore, 1 Vent. 137. Smith vs. Packhurst, 3 Alk. 135. Bagshaw vs. Spencer, 2 Atk. 570. Mosley vs. Mosley, 5 Ves. jr. 248. The word grant, even at common law, amounts to a covenant. Pomfret vs. Ricroff, 1 Saund. 321, 322. Yielding and paying rent amounts to a covenant. Bac. Ab. tit. Covenant, (B) 65. Bargain and sale is a covenant to convey and to do all it purports to do. 2 Fonbl. 46. Mestaer vs. Gillespie, 11 Ves. 625. Bargain and sale, though not enrolled, may be effectuated in chancery as a covenant. Williams vs. Mayor, &c. of Annapolis, 6 Harr. & Johns. 529. The words in the deed of compromise import a covenant; but if they do not, yet there is enough in the recital in the deed to exclude Myers from the right of way. The covenant in the deed, at all events, compelled Myers to relinquish the right of way to Mrs. Lawson. Before complainant can claim equity of the defendant, he must do equity. The covenant must be fulfilled.  [**31]  The deed from Myers to M'Kim, bound the latter to release to Mrs. Lawson the right of way, if it could not be done in any other mode. The bargain for the property, and directions to the writer of the deed, are to be considered as a part of the deed. A recital of this kind is a covenant. Hollis vs. Carr, 2 Freem. 3. S. C. 2 Mod. 89, 91. This case is sanctioned in Saltoun vs. Houstoun, 1 Bingham, 433, (8 Serg. & Lowb. 398.) Severn vs. Clark, 2 Leon. 122. Graves vs. White, 2 Freem. 57. If it be said to be merely a personal covenant so as to bind Myers and not his assignee, the answer is, if any interest was vested in Bosley it must bind the assignee. The covenant must embrace not only Myers, but his assigns. There is a covenant in the deed that attends the land, (2 Bac. Ab. tit. Covenant, 65,) which binds the assigns, though they be not named. If not at common law, it does in equity. 1 Fonbl. 253, 354, 355. M'Kim has no right to claim the advantage of his having his building over the alley, unless he relinquishes his right to the benefits of the right of way to the alley from his lot. Equity will not permit him to enjoy the one, without his relinquishing the other. It will be said that [**32]  the deed to M'Kim refers to the deed of compromise, according to its legal operation. It does more, it shows that he is only to enjoy under his deed on the sole condition of respecting the deed of compromise. The deed of compromise is an indenture, and will operate by way of estoppel. Equity follows the law no further than to lead to an honest and virtuous decision. To do that it will enforce the doctrine of estoppel. In a case of private nuisance, such as this is, chancery has no jurisdiction to grant more than a temporary injunction to abide a suit at law. So when the title is at all questioned. Van Bergen vs. Van Bergen, 2 Johns. Chan. Rep. 272. Gardner vs. Village of Newburgh, Ib. 164. Van Bergen vs. Van Bergen, 3 Johns. Chan. Rep. 282. Corning vs. Lowerre, 6 Johns. Chan. Rep. 439. Storm vs. Mann, 4 Johns. Chan. Rep. 21. Pillsworth vs. Hopton, 6 Ves. 51. Davis vs. Leo, Ib. 784. Hanson vs. Gardner, 7 Ves. 308. Stevens vs. Beekman, 1 Johns. Ch. Rep. 318. Cooper's Plead. 159. Birch vs. Holt, 3 Atk. 726.

R. Johnson, on the same side, referred (on the question of jurisdiction,) to Norway vs. Rowe, 19 Ves. 147; and as to the effect of the recital in the deed of compromise, to The [**33]  Parishes of Caister and Eccles, 1 Ld. Raym. 683.

Marriott, for the Appellee. The deed of compromise was founded on mistake and fraud, and parol evidence is admissible to prove the mistake or fraud. This case is to be considered in the same manner as if the original parties were now before the court--as if the contest was between M'Kim and Myers. Ardglass vs. Muschamp, 1 Vern. 237. Englefield vs. Englefield, Ibid 443. Chesterfield vs. Janssen, 2 Ves. 152, 155, 157. S. C. 1 Atk. 354. Hobart vs. Galley, 2 Atk. 34; and Hawse vs. Wyatt, 3 Bro. Chan. Rep. 156. The deed of compromise is wholly void both at law and in equity. The sole consideration of it, as regards Myers, was the reciprocal release of the pretended right to the alley. Cases in which instruments of this sort have been set aside on the ground of fraud or mistake, take. Masan vs. Armstrong, 13 Ves. 25. Gee vs. Spencer, 18 Vin. Ab. 370, cites 1 Vern. 32. Lucas vs. Adams, Ib. Broderick vs. Broderick, 1 P. Wms. 239. Murray vs. Palmer, 2 Sch. & Lef. 474. Evans vs. Llewellen, 2 Bro. C. Rep. 150. 2 Pow. on Cont. 196. Lansdown vs. Lansdown, Mosely, 364. This last case, sanctioned in Hunt vs. Rousmanier, 8 Wheat. 214; and in Lammot [**34]  vs. Bowly, 6 Harr. & Johns. 500. 2 Pow. on Cont. 200. Whorewood vs. Simpson, 2 Vern. 185. In Lammott vs. Bowly, 6 Harr. & Johns. 500, a party contracting under a clear mistake of his legal rights will be relieved in equity. Fraud may be inferred from facts and circumstances, &c. Watkins vs. Stockett, Ib. 435. A written agreement rectified on proof of fraud or mistake, &c. Wesley vs. Thomas, Ib. 24. By the agreement between Bosley and Myers, the former released his right, if any he had, to the alley, to the latter, by parol agreement, before the deed from Lawson te Myers, for a valid consideration. The answer admits the agreement. It is executed, and will be established; so decided in Jones vs. Slubey, 5 Harr. & Johns. 372. Suppose the deed of compromise legally and fairly executed, what is its legal effect and operation? It is said it will operate as a grant--as a release--as an extinguishment. That it created a covenant on the part of Myers. There are no words in the deed constituting a covenant. It was intended, if at all, as a grant or release. A deed intended to operate in a particular manner, if it fail so to operate, cannot operate in any other way. Shep. Touch. 82. This deed [**35]  was intended to be effective as a grant or release, and, therefore, cannot operate as a covenant to stand seized. Myers had no right to grant the right of way; and if his deed was legally executed, it did not pass the right to Bosley. He could only release to Mrs. Lawson. As to the different kinds of rights of ways--See 1 Thomas's Coke Litt. 234, (note D.) This is the case of a way appendant to an estate. Can such a way be granted? The right of Myers to use the alley was appendant to his use of lots No. 1 and 13. He cited Fitz. Ab. tit. Grant, 47, pl. 38. Bro. Ab. tit. Grant, pl. 130. Nevil's case, 1 Plow. 381. Shep. Touch. 240. 14 Vin. Ab. tit. Grant, (F) 45. To show that the right was not extinguished, he cited 2 Coke Litt. (Thomas's,) 372, (note R.) Ib. 557, (note K.) 11 Vin. Ab. tit. Extinguishment, (C) 449. It could not be extinguished without the consent of Mrs. Lawson, and of all others entitled to the benefit of the right of way. But it is said that as Bosley and Farnandis had a right of way in the same alley, they were capable of taking a release from Myers. They had, however, no right in the soil, but only title to the way in common with other holders of the lots on the alley.  [**36]  The civil law agrees with the common law in this particular. 1 Domat Civil Law, 196. Definition of a service, Ibid 199. Services being annexed to lands, and not to persons, cannot pass unless the land passes also. Ibid 204. The service ceases on the master of the land becoming the owner of both.

Wirt, (Attorney-General of U. S.) on the same side. The injunction in this case is against the obstruction of the passage of the water from the house and lot of M'Kim, through the common alley left for the use of all the holders. How does Bosley claim the right to create this obstruction? He says, under the deed of 1815, the deed of compromise. That deed is void.

1. It is void because it was obtained under circumstances which render it so. Look at the posture of the parties, and of their relative rights, when the deed was entered into. What were the rights acquired at the sale? He here went into an examination of the evidence, to show that it was understood at the sale that the purchaser of lots 1 and 13 was to have the intervening alley itself. Though Myers may not have heard the terms of sale, he could take advantage of them. The bond of conveyance to Myers shows that he acquired [**37]  higher and different rights from those of the other purchasers. What rights did Bosley acquire to the alley? He acquired none. It was an outlet and way, and was so represented at the time of the sale. But suppose Bosley acquired a right to the alley at the sale, and Myers did not--How stands the contract when Myers built his house? There was then a parol agreement between Myers and Bosley, that Myers might build on the alley, and that agreement was executed. Bosley's answer admits the agreement. Fowkes vs. Joyce, 2 Vern. 129. But it is said that this parol agreement did not affect Farnandis. He stood by and saw the building going on, and made no objection to it. He is, therefore, to be presumed to have assented to it. 1 Madd. Chan. 263, 264, (and note.) After this the right of Myers was complete. Bosley's rights were gone by his consent. Five years afterwards Bosley complained, and walled up the alley--admitted he had no right to do so, but said that if Myers claimed a right to that part of it below his house, that those below had right to the alley above, and perhaps a part of Myers's house must come down. Bosley proposed an arrangement, which Myers agreed to, doubting his right to [**38]  the alley, and not willing to enter into a law suit. Is an agreement entered into under such circumstances to be enforced or respected? We have seen what were Myers's rights--moral coercion by one, and mistake by the other. No consideration for the agreement. There is no reciprocity in the deed of compromise. Bosley and Farnandis only pretend to grant the soil. Myers conveys the use to the alley. Will the deed be respected as a deed of compromise of doubtful rights? If of rights, of which the party did not know, it is not a valid deed. Cann vs. Cann, 1 P. Wms. 724. In Lammott vs. Bowly, 6 Harr. & Johns. 500, it was decided that ignorance of legal rights will not preclude the party from recovering against an agreement entered into by him under such ignorance.

Can M'Kim make the objection to the validity of the deed of compromise if it be void in law, he having purchased with a knowledge of the deed? He purchased subject to that deed; and if the deed was void, it cannot affect him, and he can object to it. The validity of the deed must depend upon the deed itself, and cannot be aided by M'Kim's knowledge of its existence. Suppose a purchase made with a knowledge of mortgages, some [**39]  of which were obtained by fraud, usury, &c. can not the purchaser object to their validity? M'Kim was placed in Myers's situation, and if Myers could object, so may M'Kim. But it is said that this deed was subsequently affirmed by the deed from Myers to M'Kim, so as to render the first valid. This, however, is not so, for confirmation upon confirmation will not aid such a deed. Ardglass vs. Muschamp, already cited, is full to that point. Rook vs. O'Brien, 1 Ball & Beatty, 357, was a case of ratification upon ratification, and yet 30 years afterwards the deed, so ratified, was successfully impeached.

2. The second objection to this deed is, that at law it is void. Its mere legal operation is on a right of way on a particular piece of land. Is such a right the subject of a conveyance? A right of way appendant to land is an incorporeal hereditament. It does not vest in the proprietor--It stands connected with the land, and cannot be severed at all from the soil to which it belongs. A right of way appendant, connected with land, cannot be conveyed or granted, or severed from the land. This is the rule of both the common and the civil law. It may be extinguished by a deed to Mrs. Lawson,  [**40]  but to no one else. It was extinguished by her deed to Myers. One tenant in common cannot release to another. 2 Thomas's Coke Litt. 551, (note a.) A party is never estopped from denying the legal existence of his deed. A deed of bargain and sale not recorded, may operate as a covenant, by reason of the payment of money. The recital in the deed of compromise is to relinquish that to which he had no right, and he goes on so to relinquish in the deed itself, which is a nullity. It is therefore, not a recital which will amount to a covenant. If it is a covenant, it binds Myers personally; for it does not profess to bind his heirs and assigns. The deed conveys nothing to him from the other parties to it, for they had nothing to convey.

3. Does the deed of compromise convey the subject? Suppose it did, what was Bosley's remedy? Not to put up the wall he erected, but to institute his action to recover damages. But the instrument in no part of it acts upon the passage of the water in its natural course, but upon a right of passage of man, horse, &c. through the outlet. The deed professes to convey mutual rights. No right of passage for the water up the alley existed in fact, because none [**41]  ever went or could go that way.  It then could not convey that right. But the water went the other way, and this it is said, Myers conveyed. The right of passage of water is natural or conventional. Rain water is to flow in its natural course, and cannot be obstructed. There is no such thing as a man's conveying the right of water to pass over the grounds of his neighbour. The deed will not be construed so as to control the laws of nature.

4. Admitting all the above grounds to be against us, still the parol contract by Bosley, that the water might pass until it should become a nuisance, is to be respected. Under that agreement it was used for 5 years by Myers. M'Kim succeeded to Myers's rights. Is the water that now passes a nuisance? Nothing passes but rain water--Is that a nuisance? It must be established as a nuisance before the right to its passage can be prohibited. The water, &c. from the kitchen, passes in another way. If a nuisance, the corporation could interfere and prohibit it. The rain water passing through would cleanse the lower part, into which the washings of the stables and offal of other kitchens collect.

As to the point of jurisdiction. It [**42]  has not been stated whether the jurisdiction is denied to award the injunction, or to perpetuate it. The decree was pro forma, by consent, and there is nothing to prevent this court from acting on the case. No objection was taken below to the jurisdiction. If the court could award the injunction, and send an issue to a court at law afterwards for trial, their not doing so cannot be complained of by either party, because they were prevented from doing so by the pro forma decree. The decree is to vacate a deed obtained by fraud, and until that was done, there could be no case at law. A court of law may in some cases examine into fraud; but if it can, so may equity more fully. There is no case showing that a court of equity cannot stop a nuisance. This is an obstruction which would be prejudicial to M'Kim's property, and the health of his family, or run him to considerable expense before the question could be tried at law. Where a court of equity has refused to interfere, it has been where the party complaining has acquiesced for years; or the trespass has been done and passed, and the object is only to prevent a repetition of it. Van Bergen vs. Van Bergen, 2 Johns. Chan. Rep. 272. S.  [**43]  C. 3 Johns. Chan. Rep. 282. Corning vs. Lowerre, 6 Johns. Chan. Rep. 439. Storm vs. Mann, 4 Johns. Chan. Rep. 21. Hanson vs. Gardiner, 7 Ves. 308. Stevens vs. Beekman, 1 Johns. Chan. Rep. 318. This last was a mere ordinary case of trespass.

R. Johnson, in reply. 1. Upon the question of jurisdiction. Whether the court had jurisdiction to issue the injunction, is not the question; but whether an issue ought not to have been sent to a court of law to be tried; and whether a perpetual injunction ought to have been decreed before such an issue was tried at law?

[BUCHANAN, Ch. J. This court think the court below were not precluded from going on to perpetuate the injunction, or to dissolve it, without sending an issue to a court of law.]

This being the opinion of the court, the next question is, whether the injunction ought to have been perpetuated, under the circumstances of this case, admitting that there was no necessity to send an issue to be tried at law? The fraud charged in the bill gave jurisdiction; but though it is stated that the deed of 1815 was obtained by fraud, yet the court were not asked by the bill to set aside that deed. So far as that deed conferred rights [**44]  on M'Kim, he had no objection to its standing as valid. The nuisance charged too, was stated to be of an irreparable injury. The answer denies that the nuisance is irreparable. There is no proof that it is of that character. It is in proof that pipes laid in the cellar conduct the water from the kitchen, (which is on a level with the yard,) into Holliday-street. If that is the case why cannot the rain be conducted the same way? All the equity in the bill is denied in the answer, and so is the irreparable injury, and there is no proof contradicting, in these particulars, the answer. That being the case, what are the authorities on the subject Van Bergen vs. Van Bergen, 3 Johns. Chan. Rep. 282. The right interfered with must be a long previous right--not a permission It must be a strong case of pressing necessity, or established at law, to induce equity to interfere by injunction. Brown's case, 2 Ves. 414. The right must be first established by a trial at law. Storm vs. Mann, 4 Johns. Chan. Rep. 21. Where the title is disputed, an injunction will not be granted to stay waste. Gardner vs. Village of Newburch, 2 Johns. Chan. Rep. 165. Attorney General vs. Utica Insurance Company, Ibid [**45]  379. Reid vs. Gifford, 6 Johns. Chan. Rep. 19. Norway vs. Rowe, 19 Ves. 147. There can be no injunction for waste where the title is disputed by the answer. Eden on Injn. 168. Another ground, stated in the bill, for the exercise of this summary power by the court, is that it will prevent the multiplicity of suits. Cooper's Plead. 159, and the cases there cited. These cases show, that a perpetual injunction ought not to have been decreed.

2. As to the effect of the deed of 1815. It is said that that deed was obtained by fraud or mistake. In the first place there is no proof that Myers purchased the intervening alley between 1 and 13. If the alley was sold so as to consolidate lots No. 1 and 13, why not also consolidate No. 2 and 14, and all the rest of the lots?

3. It is said a right of way appendant cannot be conveyed in gross. This is not denied. Here it has not been done. The conveyance here is not to a stranger. The use of the alley was given to all the holders of lots on the alley. Bosley does not hold a right of way in gross, in the alley, under the deed from Myers in 1815. Where persons have a right of way jointly, there is no authority to show that one of them cannot [**46]  transfer his right to the others. Such a transfer is only an enlargement of the right of way in the rest. But it is not a right of way strictly speaking, it is an easement. Godley vs. Frith, Yelv. 159. Anon. 3 Salk. 40. The deed is a covenant not to use the way. Hollis vs. Carr, 2 Freeman, 3, sanctioned by S. C. 2 Mod. 89. Saltoun vs. Houston, 1 Bigham, 433, (8 Serg. & Lowb. 368.) An agreement to do an act amounts to a covenant to do it; a recital amounts to a covenant. A court of equity would enforce a specific execution of the agreement against Myers, if Bosley and Farnandis had filed a bill against him. The Parish of Caister vs. The Parish of Eccles, 1 Ld. Raym. 683. Jacobson vs. Fountain, 2 Johns. Rep. 176, per Thompson, J. But it is said to be a personal covenant, and not to bind M'Kim. This would put it in the power of M'Kim to perpetrate a fraud on Myers; for in Myers's deed to M'Kim it is expressly stipulated that the alley was not to be used by M'Kim. Myers intended to guard against his responsibility to Bosley and Farnandis, by putting the exception of the right of way in his deed to M'Kim. M'Kim agreed so to hold the lot. If Bosley and Farnandis could recover of Myers, Myers [**47]  could recover of M'Kim. But it is said if the deed of 1815 be a valid deed, Bosley has no right to obstruct the right of way. What then? The question here is, has M'Kim a right to complain? If he has a right, any other person had a right to complain. This is the first time a court of equity was ever called upon to relieve a man against his own covenant.

Taney, also in reply. The alley in dispute here is a private one to a few individuals, and the rights to it were acquired by contract, and depend solely upon contract. It was laid out for a way, and outlet and passage for the water, by the original proprietor of the ground. The lots are entitled to the alley as an easement. For that purpose the plot, by which they were sold, so represented it. Mrs. Lawson contracted that it should be a way and passage, as well as a way for water. M'Kim must show himself entitled to the easement he claims, and that such title is opposed by Bosley. If he has no interest, and no right to the drain of water he claims, he cannot call upon this court to aid him in relation to it. A stranger in interest cannot claim the interposition of the court of chancery. M'Kim being a purchaser with notice, is bound [**48]  to the same extent that Myers was bound. He knew of the agreement between Myers, Bosley and Farnandis. Sugd. 526.

1. Was Myers entitled to the relief at the time he sold to M'Kim?

2. If Myers was entitled, is M'Kim entitled under his contract with Myers?

1. The agreement of Myers in 1815 extingnished all right which Myers had. But it is said it was obtained by fraud, and without consideration; and that independent of the agreement itself, there is evidence of the fraud. Can parol evidence contradict the plot by which the property was sold? The exhibition of the plot at the sale makes the plot as binding on the parties as would be written terms of sale, and they cannot go out of the plot to prove that the lots were not sold according to the plot. Sugd. 22, 23. Here M'Kim claims a contract of sale of the alley, and a specific execution of it. It is said there was a pencil-mark made on the plot at the sale, connecting lots 1 and 13, so as to make them one lot. The great bulk of the evidence is that there was no such mark. Myers's own testimony is that it was not there, and he purchased without hearing that the two lots were to be connected so as to take in the alley. If [**49]  Myers acquired no right at the sale, then there was no fraud in Bosley in stating to him that he had no right to build over the alley. But it is said Myers obtained the right under a verbal contract with Bosley. That contract was but a license to build over the alley, and on a part of it, but not on the whole, and to leave an opening by a gate. A license to occupy a part is not a license as to the whole. A license is always revocable. Myers acquired a right as against Bosley to seven feet to the alley. How then did he acquire a right to the other part? The remaining part to the alley remained as it did at the sale. But as to Farnandis there was no consent. When a party, with a full knowledge of his rights, makes a contract, there can be no fraud in a man in contracting with him. There being a nuisance caused by Myers, Bosley had a right peaceably to prevent it. If any force or violence was used, it was by Myers in pulling down or preventing the obstruction of the nuisance. It could not be menace or duress, it is personal fear. Duress and fraud act differently. To make it fraud Bosley must have insisted upon a title which he had not. But suppose Bosley had no right to the alley, but [**50]  believed he had a right of way between No. 1 and 13, there can be no fraud in his asserting the right. There can be no fraud unless his knowledge that he had no right, is brought to him, and that he intended a fraud on Myers. Myers was not deceived by any thing coming from Bosley. He acted upon his own knowledge. Was Bosley wrong? Learned counsel would have advised Myers to do what he did. Was the title of Myers's rights secured against Bosley and Farnandis? It was not a secure title, and he was right in making the contract with Bosley and Farnandis. Myers was not mistaken in the facts. Was he mistaken as to the law? Ignorance of the law is never presumed. It must be proved, and there is no evidence to show, that Myers was ignorant of his rights. The deed of 1815 operated as an extinguishment. If the deed did not operate to pass the right in gross, it can operate to extinguish, and Myers is estopped from saying it did not operate to extinguish his right. 1 Thomas's Coke Litt. 328. As to recitals being agreements--1 Pow. on Cont. 236, 238, cites Greaves vs. White, 2 Freem. 57. Chancery would enforce the agreement. But Bosley is not here seeking to enforce it; it is M'Kim claiming under [**51]  Myers, who is seeking to avoid it. The two parties stand very differently. Here M'Kim claims equity, without doing equity. If the recital is to operate as a covenant, there is an end of the case. But the granting part will operate as a covenant, (if it will not operate as a grant,) that he will not use the right of way, or any right on that part of the alley. It is like the case of The Parish of Caister vs. The Parish of Eccles. 1 Ld. Raym. 683, which was at law. The end the parties had in view is carried into effect. If the right itself could not be severed or extinguished, yet Myers could covenant not to use it. Eden on Injn. 223. If it is a covenant not to use the alley, then, the conclusion is irresistible, M'Kim cannot use the alley. What is M'Kim's equity? He has not shown that the deed was obtained by fraud, &c. He has no pretence of equity. He has shown none. Supposing the contract a valid one free from fraud, mistake, &c. his right to the alley, if any he had, was a voluntary gift of Mrs. Lawson, for which he paid nothing. Myers, at the time he sold to M'Kim, had no right, and M'Kim, purchasing with notice, cannot stand in a better situation than Myers would, and he is bound [**52]  by it. Whatever is contracted to be done, is considered in equity as done. Nothing could pass to M'Kim, because all right and equity being out of Myers, he could not convey it to M'Kim. But it is said if Myers was bound, M'Kim is not, because the right followed the inheritance. That it run with the land, and could not be severed. Taylor vs. Stibbert, 2 Ves. jr. 437. Suppose an innocent mistake, and M'Kim purchased with a knowledge of the deed, he cannot set up the mistake. He does not stand here as Myers, would stand. He paid nothing, and purchased with the exception of the right of way. If his deed conveyed it to him, it is without consideration. M'Kim then has no right to come into equity, and claim relief from the mistake. The party himself, upon whom the mistake operated, might have been relieved against it, but not he who purchased with notice, and an acquiescence. M'Kim comes here as a mere volunteer--Will equity grant him what he asks? Parol evidence cannot be offered to contradict a written instrument, unless fraud, mistake or surprise, is alleged. Westley vs. Thomas, 6 Harr. & Johns. 24. The deed from Myers to M'Kim does except the right to the alley. Upon the true exposition [**53]  of that deed, it does except the right of the alley or outlet. The intention of the parties is to be regarded. It cannot be subject to the agreement, unless controled by it; and it admits the agreement. It is a covenant on the part of M'Kim, barring him in a court of equity, and binding him to fulfil the agreement. It is said the claim of M'Kim is only to pass the rain water--a natural right which he claims the benefit of; that this natural right could not be passed away. Admit that it could not, yet there might be a covenant to give up and relinquish it. The bill does not charge that the alley was the natural course for the rain water. That fact was not put in issue. It is stated as a matter of belief, that the water did pass down the alley; but it is not charged that that was the natural conduit of the water. But admit the water to have gone naturally in that direction, could it by a mound be collected water, and pass in a current upon the adjoining property? If this could be done in the country, yet it cannot in a city, where many rights must be and are surrendered. The right, therefore, of passing the rain water in a city is by contract, and there are no natural rights there upon [**54]  the subject; artificial drains in a city are substituted for natural ones. Myers's right to pass the rain water was by contract, and was not a natural right; and being so, he could pass that right, or bar himself from using it. He has severed it by contract, as he well might, being held by him under contract. It is said there was a parol contract by Bosley to permit the water to flow until it became a nuisance, which was not reduced to writing at the time of the deed of 1815. Can parol evidence be admitted to prove a parol contract different from the written one? The bill does not allege any contract not stated in the written one, and that the written contract does not contain the sense of the parties. Westley vs. Thomas, 6 Harr. & Johns. 24. But there was no contract, but merely a permission. Myers proved that Bosley might stop the water when he pleased, and that there was no right to the alley or outlet. When it became a nuisance, the obstruction complained of was erected. So long as the water flowed through the gate nothing was said by Bosley. But the gate was taken away and the passage considerably narrowed. Then the nuisance became highly offensive. When so, Bosley interfered [**55]  to prevent the water from passing that way. M'Kim does not claim the easement, as Myers did, but claims a greater privilege, and walls up the passage way, leaving a small hole for the water to pass through.

Curia adv. vult.  

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

OPINIONBY:
STEPHEN; DORSEY 

OPINION:

 [*498]  STEPHEN, J. at this term delivered the opinion of the Court. Elizabeth Lawson, being seized in fee simple of a parcel of ground lying in the city of Baltimore, caused the same to be divided into lots, and alleys for the benefit thereof, and a plot of the whole to be made, with a view to expose the same to sale, and on or about the first of December 1809, caused the said lots, or some of them, to be set up to public auction. At said sale Jacob Myers became the purchaser of the lots designated on said plot by the numbers one and thirteen. The bill charges that the said Myers purchased the said lots, with an understanding that the portion of the north and south ten feet alley, intervening between the said two lots, should be included in his purchase, and that he should have the same right [**56]  and title to that as to the lots themselves. The bill further states, that at the said sale a certain James Bosley became the purchaser of lots number two and number fifteen; that a certain John Small became the purchaser of lots number three, four and fourteen; and that Samuel and Walter Farnandis became the purchasers in common of the lot number five; all of which last mentioned lots bounded on the north and south ten feet alley. The bill further charges that the said alley was designed for the accommodation of the purchasers of the lots bounding thereon, as a way or passage, and as an outlet for rain water, and other similar purposes, through the ground of the said Elizabeth Lawson down to Jones's Falls. In the spring of 1810, Jacob Myers, under an impression that he had purchased 

 [*499]  the intervening alley, as well as the adjacent lots, began to build on the lots purchased by him, and erected his buildings upon a part of the alley. After the completion of the buildings aforesaid, he resided several years in the same, until about the year 1815, when Bosley began to question the right of Myers so to cover with his buildings the said part [**57]  of the said alley, and began to threaten to disturb him in the occupation thereof; and the bill charges that he insisted that he could make him pull down and take away such portion of his said buildings, or improvements, as were placed upon the alley, in virtue of a right in himself, and the said Samuel and Walter Farnandis, to the use of the said part of the said alley; it further states that Myers, becoming alarmed for his title to the said part of the said alley, and for his buildings thereon erected, was induced to doubt his own unquestionable rights, and being anxious to avoid a law suit, on the first of July in the year 1815, joined with the said Bosley, and Samuel and Walter Farnandis, in the execution of a deed, by which, in consideration that the said Bosley and Farnandis transferred to him, Myers, his heirs and assigns, all their right, title, interest and claim of, in and unto, all that portion of the said alley which had been built upon by him, he Myers transferred and relinquished to them, their heirs and assigns, all his right and title to the use of the alley, except the part built upon by him as above mentioned. On the seventh [**58]  of November, in the year 1816, Jacob Myers conveyed to John M'Kim all his right and title to the property, so as aforesaid purchased by him at the sale of Elizabeth Lawson, subject, however, expressly to the contract so as aforesaid entered into by him with the said Bosley and Farnandis, bearing date on the first day of July, in the year 1815. Some time after the purchase of M'Kim from Myers, Bosley obstructed the passage of the water, from M'Kim's property, down the alley, relying for his authority so to do upon the said deed of the first of July 1815; and M'Kim filed a bill in chancery to compel the removal of the said obstruction, and to be quieted in the use and enjoyment of said alley, as alienee and assignee of the said Myers. The injunction prayed for was granted. Bosley, in his answer, denies that at the said sale, (which he states he attended from first to last,) there was any understanding that the 

 [*500]  purchaser of lots number one and thirteen should become entitled to the intervening alley. He also admits that he permitted Myers to build on a part of said alley upon certain terms; but denies that he ever intended [**59]  to relinquish, or ever did relinquish, his right or title to the said intervening portion of said alley, except for an adequate consideration, or in other words unless Myers relinquished all his right and title to the residue of said alley. The bill charges that the deed of the first of July 1815, was unduly obtained by Bosley, by menaces and threats, operating upon the fears and timidity of Myers, and from a misapprehension, on the part of Myers, of his legal rights; all of which is denied by Bosley in his answer. On the 10th day of January, in the year 1824, Baltimore county court, in the exercise of its chancery jurisdiction, decreed the injunction, which had issued according to the complainant's prayer in his bill, to be perpetual. From this decree the respondent in the court below prayed an appeal to this court; and upon the merits and propriety of that decree this court are now called upon to pass their judgment. The first question which presents itself to the consideration of this court is, whether Jacob Myers can be considered as the purchaser of the intervening alley between lots numbered one and thirteen, as well as of the lots themselves?  [**60]  From the whole of the proofs, consisting of the acts of the parties, and the evidence, documentary and parol, this court are led to the conclusion that he was not. If he was not the purchaser of the intervening alley, there was a good and valid consideration to support the deed of the first of July 1815. M'Kim became the purchaser of lots number one and thirteen, with a perfect knowledge of the contract entered into by Myers, under whom he claimed, with Bosley and Farnandis; although then he might have acquired the legal title to the intervening alley in virtue of the deeds from Lawson to Myers, and Myers to him, still it may be asked, what equity had he in the face of Myers, contract, subject to the operation of which he expressly purchased, to sustain his application to a court of chancery for relief in the manner and to the extent he has asked it. It is the opinion of this court that he had none. It was contended, in the course of the argument, that the deed of the first of July 1815, did not operate to transfer 

 [*501]  the right of the parties to that instrument to the use of the alley; that it was a right of way appendant, which could [**61]  not be severed from or pass without a transfer of the lots to which it was appendant. But it is perfectly clear, that in equity a contract may operate efficiently to carry the intention of the parties to that contract fully into effect, although at law it might be wholly inoperative. "Equity which adverts to the substantial object of all contracts, independent of the forms which they assume, gives effect to the intent of the parties, by considering their acts as evidence of such a contract or agreement as will produce what is stipulated." One case only, and that a familiar one, will be mentioned as illustrative of this doctrine of a court of equity. An assignment of a chose in action, as a bond or the like, which in law is not assignable, is valid in equity. For a court of equity proceeds upon the principle, that the assignment, although not effectual as such at law, the bond not being assignable in point of interest, amounts nevertheless to a covenant or agreement that the assignee shall receive the money to his own use, which covenant or agreement that court will carry into specific execution. Upon this subject--see 1 Powell on Contracts, 189, and the cases there referred [**62]  to.
Taking this view of the subject this court do not deem it necessary to enter into an examination of all the questions which were raised in the course of the argument, it being sufficient to decide the case before them, that the appellee had no equity to support his application to the court below for an injunction.
DORSEY, J. added. The annals of judicial proceedings do not furnish a case where a court of equity has granted a perpetual injunction to a plaintiff, to protect him in the enjoyment of a naked legal right, which he, and those under whom he claims, have by the most solemn deeds stipulated not to exercise; yet such is the predicament of the complainant in this case, such the interposition sought by him.
Legal rights are to be asserted by legal means, and in such cases courts of equity never lend their aid where equity and justice do not imperiously demand it. What species of equity would that be, which would exert itself to destroy a right, secured, as far as it can be done, by deeds founded on adequate 

 [*502]  considerations, and vest it in him who had paid no consideration therefor, but had agreed, in express terms, by the deed under which he makes title, not to [**63]  claim such right. This is the kind of equity sought for in this cause.  

DISSENTBY:
BUCHANAN 

DISSENT:

BUCHANAN, Ch. J. dissented. [The Reporter shave been requested by his honour Ch. J. Buchanan to say, in their report of this case, that his dissent from the opinion of the court was not founded on a belief that any part of the fraud alleged in the bill to have been committed by the appellant, Bosley, was established by the evidence in the cause; but on the contrary he was satisfied the charge was not at all supported by the proof. That his opinion rested entirely on other grounds.]
DECREED, that the decree of Baltimore county court, sitting as a court of equity, be reversed, but without costs; and that the injunction, heretofore issued, be dissolved, and the bill of the complainant be dismissed.
DECREE REVERSED, &c.  

16 of 33 DOCUMENTS 

CHASE, et al. v. M'DONALD & RIDGELY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

7 H. & J. 160; 1826 Md. LEXIS 28 

June, 1826, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from the Court of Chancery. The complainants in the court below, (now appellees,) filed their bill on the 28th of June 1821, against Samuel, Thomas, Richard M. and Jeremiah T. Chase, and The Farmers' Bank of Maryland, The City Bank of Baltimore, and T. Lytle. As the facts in the case are sufficiently stated in the decree of the Chancellor, before whom the cause was fully argued, it is unnecessary to state them here.

JOHNSON, Chancellor, (July Term 1823.) The complainants filed their bill to obtain a decree for the sale of the property included in two deeds, the first, executed by S. Chase, the elder, the father of S. and T. Chase, two of the defendants, bearing date the 21st of October 1809, duly acknowledged and recorded, to N. G. Ridgely, one of the complainants; the other a deed from S. Chase, the younger, to M'Donald and Ridgely, the complainants, in their copartnership capacity, and to N. G. Ridgely, individually. The object of the firs deed was to indemnify N. G. Ridgely, who was about to become the endorser of certain notes to be drawn by S. Chase in favour of T. Chase, to be by him first endorsed, and then by Ridgely, and to be discounted at the Union Bank. The [**2]  deed recites, that "whereas Samuel Chase, the younger, and Thomas Chase, of Baltimore, sons of Samuel Chase, the elder, are about to obtain a loan of ten thousand dollars from the Union Bank of Maryland, in notes drawn by Samuel Chase, the younger, payable sixty days after date to the said Thomas Chase, and endorsed by said Thomas Chase and the said Nicholas G. Ridgely, which said notes are to be renewed from time to time as the same become due. And whereas he, the said Samuel Chase, the elder, hath agreed to secure the payment of the said notes, and to indemnify the said Nicholas G. Ridgely for the endorsement of the said notes, or any of them." The said deed then in due form conveys the property in fee, subject to the following proviso: "that if the said Samuel Chase, the elder, Samuel Chase, the younger, and Thomas Chase, or either of them, their heirs, executors or administrators, shall at all times hereafter save harmless and indemnify the said Nicholas G. Ridgely, by reason of any endorsement made by him of the notes of the said Samuel Chase, the younger, not exceeding the sum of ten thousand dollars," then the conveyance was to cease, and to be null and void. The bill alleges [**3]  that N. G. Ridgely, under the security of the deed, did become endorser of such notes to the amount of $ 10,000; and that afterwards he became endorser of other notes, drawn by S. Chase, junior, in favour of T. Chase, and by him endorsed, to the amount of $ 7,665; all of which said notes were negotiated and discounted by the said S. Chase and T. Chase, partly with the President and Directors of the Union Bank of Maryland, and partly with the President and Directors of the City Bank of Baltimore, and afterwards the whole of the said notes, so drawn and endorsed, were negotiated and discounted at and with the President, Directors and Company, of the City Bank of Baltimore, by the said S. and T. Chase. It is also represented in the bill, that Alexander M'Donald and Nicholas G. Ridgely, copartners in trade under the firm of M'Donald and Ridgely, became the endorsers of other notes drawn by Samuel, and endorsed by Thomas Chase, amounting in the whole to $ 18,000; and that S. Chase, the younger, to indemnify and save them harmless, on the 1st of February 1819, executed to them a deed for a moiety of the same property included in the former deed, and also for two lots of ground by the deed [**4]  particularly described, the same being part of a tract of land called Elizabeth's Diligence. This deed recites, that "whereas Alexander M'Donald and N. G. Ridgely, trading under the name and firm of M'Donald and Ridgely, at the request and for the use of said Samuel Chase and Thomas Chase, endorsed sundry promissory notes, drawn by the said Samuel Chase in favour of the said Thomas Chase, and by him endorsed for the use and accommodation of the said Samuel Chase and Thomas Chase;" and also it is recited in the deed, "that the said Nicholas G. Ridgely, in his own name, at the like request, and for the use of the said Samuel Chase and Thomas Chase, has also endorsed sundry promissory notes, drawn by the said Samuel Chase, in favour of said Thomas Chase, and by him endorsed for their own use and accommodation; all which said notes have been discounted at the City Bank of Baltimore, and have been renewed from time to time." The deed also recites, that M'Donald and Ridgely, and N. G. Ridgely, had agreed to continue to endorse from time to time as the same became due, in consideration of which, and to save harmless and indemnify them, the deed was executed; the property conveyed, "to be [**5]  held in trust to save harmless and indemnify them, or either of them, from all loss or injury that they, or either of them, may at any time hereafter sustain, or be put to, on account of the endorsements made or to be made." The complainants state that they did endorse several notes drawn by Samuel, and endorsed by Thomas Chase, amounting to the sum of $ 18,000, which were negotiated and discounted by S. and T. Chase, at and with the President and Directors of the City Bank of Baltimore, for their own use and accommodation; one of those notes, as the bill declares, was retired and taken up by M'Donald & Ridgely, the others, at the filing of the bill, were held by the bank. S. Chase, the drawer, and T. Chase, the endorser, as the bill declares, failed to pay the interest on the notes at the time of the renewal, and N. G. Ridgely was forced to pay on the notes for $ 17,665, endorsed by him, to save his commercial credit, as the notes, unless the interest was paid, would have been protested. The amount paid by him up to the 25th of June 1821, was $ 2,072 64. That S. and T. Chase, on being requested to pay that sum, as well as the accruing interest, declared their inability to do so. That [**6]  S. and T. Chase, failed to pay the interest on the notes for $ 18,000 endorsed by M'Donald & Ridgely, and to prevent a protest, and to preserve their commercial credit, they were compelled to pay to the amount of $ 2,048 up to the 18th of June 1821, which sum they, S. and T. Chase, have declared their inability to pay; and that M'Donald & Ridgely have taken up and retired one of the notes, a part of the $ 18,000, the amount of which was $ 3000, due the 23d of June 1821, and the costs of protest, to wit, $ 1 74, S. and T. Chase having declared their inability to pay. On the 1st of June 1819, as the bill sets forth, S. Chase, the younger, conveyed to T. Chase the same property included in the deed of the 1st of February preceding, and subject to that deed, to indemnify Thomas, as Samuel's endorser; and on the 17th of the same June, T. Chase conveyed to Richard M. Chase, the other moiety of the property included in the mortgage deed of S. Chase, the elder, to N. G. Ridgely, of the 21st of October 1809, in trust, and with power to R. M Chase to sell the same, and apply the proceeds, first to pay the The Farmers' Bank of Maryland $ 6,600, to pay to himself $ 5,404 25, and to pay to Jeremiah [**7]  T. Chase the sum of $ 1,485, with interest, and to hold the residue for the use of T. Chase. On the 4th of October 1819, S. Chase, the younger, conveyed to the City Bank of Baltimore the same property included in his deed to M'Donald & Ridgely, of the 1st of February preceding, subject to the preceding conveyance, to secure to the bank the sum of $ 8,468, due beyond the two sums of $ 18,000 and $ 17,665, for which M'Donald & Ridgely in their copartnership capacity, and N. G. Ridgely individually, as endorsers, were liable for, or had in part paid by retiring the two notes before mentioned. S. Chase, the elder, by deed duly executed, acknowledged and recorded, on the 18th of June 1811, conveyed to his sons S. and T. Chase, the same property he had mortgaged to N. G. Ridgely on the 21st of October 1809; by this conveyance the equity of redemption in the mortgage premises was transferred to them; and that interest only could pass from S. and T. Chase, by the deeds subsequently made by them. The bill also alleges, that S. Chase, the younger, conveyed part of the same property to Thomas Lytte. But the property conveyed to him appears not to be any part of that now in contest, and the bill,  [**8]  as to him, has been dismissed.

By the joint and separate answer of S. and T. Chase, the mortgage by S. Chase, the elder, is admitted; but the defendant, Samuel, denies that Thomas had any interest therein, or was to have any part thereof, but that the loan was had for his own sole and separate use and purpose, and was used and laid out by him at his sole discretion, a part thereof being applied by him to the payment of claims and demands against his said father, at his request. The endorsements by N. G. Ridgely for the $ 10,000, and for $ 7,665, are admitted as set forth in the bill; but the notes, as Samuel and Thomas allege, were discounted for the sole use of Samuel. The endorsement by M'Donald and Ridgely to the amount of $ 18,000, as set forth in the bill, is also admitted, and the deed of the first of February 1819 to indemnify them; but they deny the notes were negotiated and discounted for their joint use and accommodation, but were negotiated and discounted for the sole use of Samuel. Samuel, in his answer, alleges that he paid the discounts, until on or about the    day of    , in the year last aforesaid, when he, being unable to pay the said interest or discount [**9]  as the notes became due, N. G. Ridgely, and the complainants, agreed to pay the same for him. The time, to which the discounts were paid by Samuel, from the above extract from his answer, is not precisely stated, but as the year 1819 is the year stated in the part of the answer preceding the extract, the words, in the extract in the year last aforesaid, must refer to that period, and ascertain the year when he failed to pay. Samuel, in his answer, states that he transferred to the complainants three whole shares of stock in the Baltimore Exchange Company, two hundred dollars on each share having been paid by him, and that on the 9th of November 1819, he made over, and assigned in writing to them, $ 1500 per year, payable quarterly, out of the rents growing due on the Fountain Inn, after the 1st of April 1820. The conveyances to T. Chase, and to the City Bank, are also admitted, as well as the deed to Lytle. S. Chase also states that he conveyed to R. M. Chase, one lot of ground, part of Elizabeth's Diligence, in trust for T. Chase, and Matilda his wife; that this conveyance was known to the complainants at the time he executed the mortgage to them. The time of the conveyance to R.  [**10]  M. Chase is not stated, blanks are left for the month and year, and a reference for the deed is made to the records of Baltimore county. The deed itself, nor a copy, was filed with the answer.

Since the argument of the cause a copy of a deed, taken from the records of the court of appeals, and filed the 6th of August 1823, has been presented to me; it purports to convey a lot of ground in the city of Baltimore, in consideration of $ 5, to Richard M. Chase, in trust for Thomas Chase, of the city of Baltimore, and Matilda Chase, his wife, for and during their joint lives, and the life of the survivor of them, without impeachment of or for any manner of waste, and after their deaths, in trust for the use and behoof of the right heirs of the said Thomas Chase, and Matilda his wife, in fee simple. This deed bears date the 30th of August 1817. The lot of ground, included in the deed, may be part of Elizabeth's Diligence, and included in the mortgage to M'Donald & Ridgely, of the 1st of February 1819, but there is nothing on the face of the deed from whence we must necessarily conclude it to be part of that tract. It may be, and I presume is, the deed referred to in the answer, although [**11]  it does not correspond to the description there given of it; but be this as it may, it appears foreign from the matter in controversy. The bill takes no notice of this deed, nor does it claim to have it vacated, or the property included in it sold, nor is Matilda Chase, who is interested in that deed, a party to this cause, and of course her interest must remain unaffected by any decree which may pass.

T. Chase, in his answer, also denies he had any interest in the loans, or was interested except as his brother's endorser, and denies that he ever saw the deed from his father to N. G. Ridgely until filed in this cause; and as he had no part or interest in the said sum of $ 10,000, so obtained by the said S. Chase, it would be right that his brother's moiety of the property mortgaged as security therefor, be first sold and applied to this purpose, and in case of its being deficient, then resort to be had to the other property mortgaged by Samuel, before recurrence should be had to the moiety of Thomas.

The defendants, as to so much of the bill as seeks a sale of the said premises, also answer and plead thereto, and for plea and answer say, that after the execution of the said [**12]  several and respective deeds, mentioned and set forth, that these defendants, together with R. M. Chase, the other defendant did, at the request and solicitation of the complainants, on or about the 1st of March, 1820, make, execute, acknowledge and deliver, to the complainants, their deed of indenture, whereby the defendants gave to the complainants full and ample power and authority to sell and dispose of the said premises, on the terms and conditions in the said deed mentioned and expressed, and that the complainants did accept of the said deed upon the terms and conditions therein expressed, and that they did cause the deed to be recorded in the land records of Baltimore county. A copy of the deed is filed as part of the plea, the original alleged to be in the possession of the complainants.

Richard M. Chase, in his answer, admits the execution of the deed of the 17th of June 1819, by T. Chase, for the moiety of the property included in the mortgage of S. Chase, deceased, to N. G. Ridgely, of 1809; be R. M. Chase claims and insists, that under the deed to him he is entitled to a preference over the complainants, after the $ 10,000 is discharged, which, as he contends, should [**13]  be raised out of the moiety of S. Chase, and his other property, and that the moiety conveyed by T. Chase, should not be sold without the consent of R. M. Chase, unless S. Chase's property should be insufficient to discharge the mortgage, and in such case only so much as will supply such deficiency.

The answers of the three defendants, Samuel, Thomas, and Richard M. Chase, present all the grounds on which the claim of the complainants is resisted.

In the argument of the case several points were relied on that do not present themselves to the notice of the court by the defences set forth in the answers. Before any attention is bestowed on the points relied on at the argument, it will be necessary to premise a few facts, clearly established by the evidence in the cause.

Unwilling to determine controverted facts, which were susceptible of indisputable proof, after the first argument in the case, an interlocutory decree was passed, in substance as follows: Several important points of law and equity have been raised, on the determination of which the merits of the respective parties will depend. Not only those points were pressed with great force and earnestness, but the [**14]  facts existing in the cause were also controverted, and until the facts are established, either by proof or by admissions, it is judged premature to determine on the law and equity of the case, which may vary according as the truth of the case may present itself. If, for example, the original or the subsequent mortgage was paid off, either by S. or T. Chase, with their own funds, not proceeding directly or indirectly from the complainants, or one of them, surely they can have no claim on the mortgage premises; but it may be otherwise if the funds, that were applied in discharge of the mortgage, were obtained in consequence of their responsibility, and which they, in consequence of their liability, have been since compelled to replace or pay to the bank from whence they were obtained, whether that was the Union or the City Bank. The auditor, by the interlocutory decree, was directed to state an account from the evidence in the cause, or from such as might be laid before him by the parties, in which account he was directed to make it appear what sum (if any,) is due to the complainants, or either of them, in consequence of money paid by them, or either of them, as the endorsers of the [**15]  notes of S. Chase, and which notes were first endorsed by T. Chase; to what bank the same was paid; and whether, if paid to the City Bank of Baltimore, the debts there arose to meet notes, and what notes, before discounted at the Union Bank. That he should state the sum due at the audit, and the sum due when the present bill was filed.

No other proof was laid before the auditor on the part of the complainants; but evidence was produced to prove the sum due to the Farmers' Bank of Maryland, which debt was intended to be secured by the deed of trust to R. M. Chase, from T. Chase, of the 17th of June 1819. By the evidence of the Teller of the bank, taken before the auditor, it appears that on the 6th of January 1819, a note drawn by T. Chase for $ 6,600, endorsed by Richard I. Crabb, Samuel Chase and Richard M. Chase, was discounted by the bank, and the proceeds thereof passed to the credit of T. Chase; that the note was renewed until the debt amounted to $ 6,743 09, and on the 10th of November 1819, it was protested; that that debt is due to the Farmers' Bank.

By the report of the auditor of the 18th of April 1823, it appears that at the time the present bill was filed, to [**16]  wit, on the 28th of June 1821, there was due to M'Donald and Ridgely the sum of $ 5,169 98, and to N. G. Ridgely the sum of $ 2,190 06; that at the date of the audit there was due M'Donald and Ridgely on account of monies paid by them as endorsers of notes of S. Chase, first endorsed by T. Chase to the City Bank of Baltimore, the sum of $ 21,972 27, and to N. G. Ridgely individually the sum of $ 21,988 45, making the aggregate of $ 43,960 72. The auditor in his report remarks, whether the said notes to the City Bank were negotiated to meet notes discounted at the Union Bank, does not distinctly appear, although it may be remotely inferred from the fact that some of the defendants, and especially S. Chase, seem to have considered the mortgage of 1809 as a subsisting security to the complainant, Ridgely, to the amount of $ 10,000, after and notwithstanding the payment of his notes to the Union Bank in 1813.

The auditor could not have exercised his usual circumspection when the above remarks were made; it is not S. Chase's seeming to consider the mortgage of 1809 as subsisting, from whence it is to be inferred that the debt to the Union Bank was discharged, by funds obtained from [**17]  the City Bank on the notes of S. Chase, endorsed by T. Chase, and by the complainants. The complainants in their bill expressly state, that the notes discounted at the Union Bank were all afterwards negotiated and discounted at the City Bank; the defendant, S. Chase, in his answer expressly admits that N. G. Ridgely did become his endorser to the amount of $ 10,000, and also that he afterwards further endorsed for him to the amount of $ 7,665, and that he, S. Chase, negotiated and discounted the said notes as set forth in the said bill of complaint. T. Chase, R. M. Chase, and J. T. Chase, all by their answers recognize and admit the mortgage of 1809 as in full force, and entitled to a preference; and in the deed of the 1st of March 1820, executed by S. Chase, T. Chase, and R. M. Chase, the existence of the mortgage is admitted, and allowed to be entitled to a preference. Against that claim, until the argument of the cause, no one appears ever to have made the least objection. But if the debt to the Union Bank had been discharged by S. or T. Chase, or if they entertained a doubt as to their capacity of transferring the claim from the Union to the City Bank, so as to be secured by the [**18]  mortgage, such admissions and concessions never would have appeared. The City Bank was incorporated by a law which passed on the 31st of December 1812, and Samuel Chase is one of the persons appointed commissioners to carry the act into effect, and in all probability was one of the first directors of the bank. By the evidence of J. Pinkney, the cashier of the Union Bank, his (S. Chase's) account was closed on the 20th of July 1813, very shortly after the City Bank got into operation; and exclusive of the evidence mentioned, there would be every reason to conclude he would wish to transfer his debt from a bank, over which he had no control, to one in which he could have influence. On the whole, I am perfectly satisfied that the debt to the Union Bank was closed by funds obtained from the City Bank, on notes drawn and endorsed, as stated in the bill, and that the sums stated by the auditor as due when the bill was filed, was then due, as well as the sums stated to be due to the date of the audit.

It remains to be considered whether the complainants are, on equitable principles, entitled to a decree for the sale of the property, and if entitled to a preference, to what extent. And [**19]  supposing them justly entitled to relief, are they excluded by the manner that the cause has been conducted? In other words, as the complainants failed to set the plea down for argument, must that plea, although the court is satisfied as to its insufficiency to bar the demand for a decree to sell, cause the bill to be dismissed, leaving the parties to the only relief extended to them by the deed of the 1st of March 1820, or de novo to enter this court?

In support of the claims of those intended to be benefitted by the deed of trust to R. M. Chase of the 17th of June 1819, it has been contended, that as by the books of the Union Bank the claim against S. Chase appeared to be closed, therefore R. M. Chase must, although the debt at the Union Bank was discharged with the funds of the complainants, be considered as a purchaser without notice. I shall not examine the case with a view to substantiate the knowledge of R. M. Chase, as also of those for whom he held the property in trust, of the nature and extent of the complainants' demand at the time the deed was given to him; for it is perfectly immaterial whether he was apprised of its extent or not.

I lay it down as incontrovertible,  [**20]  that he to whom an equitable interest is passed can never stand in a better situation than the person from whom such interest was obtained. But he who obtains a legal interest may, if his equity is as strong as his competitor, overreach and defeat him. If, therefore, a person is so imprudent as to convey his land, and deliver the possession before he is paid, although he retains an equitable lien on the land for the amount of the purchase money, such lien only remains while the property is in the possession of the vendee, or those claiming voluntarily under him, or those claiming as purchasers under him, without a knowledge of the nonpayment. But the moment the vendee re-sells and conveys to a bona fide purchaser, ignorant of the original purchase money not having been paid, his equitable lien immediately vanishes. Not so he who sells lands and obliges himself to convey them, though that obligation can never be enforced by the vendee, or any person claiming under him, until the whole purchase money is paid--no matter what representations may be made by the first to the second vendee--no matter how totally ignorant he may be of the claim of the original vendee, the first vendee can [**21]  place the second in no other predicament than that in which he himself stood. Books, it is presumed, need not be cited to establish those principles, and if correct, they prostrate any pretensions R. M. Chase, or those for whom he holds in trust, can have on the ground of his being a purchaser without notice. In virtue of the deed of 1809 from S. Chase, deceased, the legal estate in the mortgage premises was and still is in N. G. Ridgely. S. Chase, the elder, by his deed to S. and T. Chase, his sons, could only, and did only, transfer to them the equity of redemption, the legal estate was not under his control, and as the sons only obtained the equity of redemption, nothing more could pass from them. If then the mortgage of 1809 be a subsisting mortgage, susceptible of being enforced in this court, that portion of defence, resting on R. M. Chase's want of notice, must fail.

It has been contended that the mortgage of S. Chase, the elder, was confined to negotiations at the Union Bank, and no claim could be set up under it for any negotiations at the City Bank, although the same arose to meet or close the claim of the Union Bank. If S. Chase, the elder, was now alive, and made a [**22]  party to this cause, to prevent a decree for the sale of the mortgaged premises to discharge the $ 10,000 loan, was to set up as his defence, that the object of his mortgage was to confine the negotiations to the Union Bank, and that he was ignorant of the transfer to the City Bank, I should doubt his success; indeed, my impressions are it would not avail. The mortgage itself appears sufficiently comprehensive to indemnify N. G. Ridgely to the extent of $ 10,000, no matter where the notes were discounted, although the deed purports to recite a loan about to be obtained from the Union Bank, and how it was to be procured and secured, yet in the proviso of the deed, by which the equity of redemption is created, the language is more comprehensive. The property is to remain in the mortgage, unless "Samuel Chase, the elder, Samuel Chase, the younger, and Thomas Chase, or either of them, their heirs, executors or administrators, shall at all times save harmless and indemnify the said Nicholas G. Ridgely, by reason of any endorsement made by him of the notes of the said Samuel Chase, the younger, not exceeding the said sum of ten thousand dollars."

Although it was much relied on in the [**23]  argument that the mortgage of 1809 was limited to negotiations at the Union Bank, yet no authority was produced to establish the position, that the recital of the deed must confine its operations to such transactions as it recites. I cannot for one moment believe it was the intention of the father to limit the transactions to that bank--there they were to commence, but where closed could be of no importance. He was desirous to restrain them as to the amount--that effected, any paper N. G. Ridgely might endorse for Samuel, the younger, was to be protected by the deed. The arrangement in the deed was wise and judicious, and such language used as the occasion demanded--nothing less could be expected from those intelligent persons. The father designed to limit the amount of his responsibility--the sons desired an accommodation, a continuing one, the duration of which was then unknown. Their views might have been speedily frustrated by the refusal of the Union Bank to continue the accommodation--the funds received on the loan might have been used in the contemplated speculation, and unless the notes at that bank could be met by funds arising from other notes discounted at another bank,  [**24]  ruinous consequences might have followed. To meet, therefore, any crisis that might arise, the endorser, N. G. Ridgely, is to be indemnified for any notes confined to the limits of $ 10,000, he might endorse for Samuel Chase. But if S. Chase, the elder, supposing that his mortgage could not be responsible for any debts, except on notes negotiated at the Union Bank, had assented to N. G. Ridgely's endorsing other notes to be discounted at another bank, could he be permitted to redeem without first discharging those notes, and thereby exonerate the endorser? What could defeat his responsibility, thus voluntarily incurred for the benefit of his sons--drawing in with it the liability of the endorser he had originally contracted to indemnify?

The cause under consideration cannot be more favorable to those claiming under the deed of the 17th of June 1819, than would be that of S. Chase, the elder, supposing him to have admitted and consented to a change from the Union to the City Bank. For S. and T. Chase, his gratuitous grantees, under his deed to them of 1811, did consent to the change, as is demonstrated by the retiring of the notes at the Union Bank, and the revival of them at the [**25]  City Bank.

There is another point of view in which this cause may be considered. It is a principle, firmly established in equity, that a surety who discharges a debt is entitled to all the indemnities and securities that the original creditor possessed. The payment to him by the security is not considered a discharge of the debt, but as a consideration on account of which the claim is transferred to the security. If, therefore, the mortgage of 1809 had been given to the Union Bank, and not to N. G. Ridgely, without a formal assignment of that mortgage, equity would give him the benefit of it; and surely, if a court of equity would give him the benefit of the mortgage given to the bank, it will not deprive him of one given to himself.

Let us now suppose that S. Chase the younger, or S. and T. Chase had the legal estate in the property included in the deed of 1809, and that they had executed that deed to N. G. Ridgely, and that M'Donald and Ridgely had gone on to make themselves, as the securities of the Chases, responsible to a larger amount, can it be questioned but that the mortgagors would be compelled, not only to pay the $ 10,000, the immediate object of that deed, but [**26]  to exonerate the mortgagees from all other engagements for which they, M'Donald and Ridgely, were responsible as the endorsers of the Chases? Need books be produced to establish that a mortgagor, as between him and the mortgagee, must not only pay the debt expressly secured by the mortgage, but all other debts he owes the mortgagee. It appears to me, from the evidence in this case, to be clearly proved, that on the 1st of February 1819, M'Donald and Ridgely, as endorsers, were responsible for the Chases to the amount of $ 18,000, and N. G. Ridgely, individually, to $ 17,665; at that time no other person, who is a party in this cause, had an interest in the premises, except S. and T. Chase, under their father's deed of 1811, and N. G. Ridgely under the deed of 1809, and on that day S. Chase conveyed as additional indemnity the property described in his deed.

A third mortgagee who advances his money, ignorant of a second, has a right, if he can, to obtain a transfer of the first to himself, to unite them, and resist the claim of the second. If so, surely the first mortgagee can claim the benefit of the mortgage to secure subsequent advances; for he who has the legal title and equal [**27]  equity, must prevail. The equitable title of the complainants, originating long before that of those claiming under the deed of the 17th of June 1819, blended with the legal title in one of the complainants, must be preferred. Particular reference, in support of the principles laid down, was deemed unnecessary; but those who may desire to see authorities in their support, are referred to Powell on Contracts, chap. 7, and to the cases there referred to, and to 2 Fonbl. B. 3, ch. 3. That the surety who pays the debt is entitled to stand in the situation of the creditor, and entitled to all securities by which the debt was assured, they are referred to 1 Kaime's Principles of Equity, B. 1, ch. 3, s. 1, and to the decisions of the court of appeals of this state in the cases of Ghiselin vs. Fergusson, 4 Harr. & Johns. 522, and of Sotheron's Lessee vs. Reed, Ibid 307.

From the view taken of the case it appears immaterial whether T. Chase was a co-principal in the transaction, or an endorser or mere security; for it is manifest, exclusive of the principle by which a first endorser must be responsible to the second, that in this transaction, in its original commencement, he was to stand [**28]  responsible to the subsequent endorser. I shall not, therefore, go into the unpleasant inquiry of determining that he was responsible on the ground of having been an equal participator in the reception of the money raised by the notes endorsed by him and the complainants.

It appears from the evidence, that before the deed of the 1st of March 1820 was executed, an offer had been made by the Baltimore Improving Company to purchase the property known by the name of Chase's Wharf, which had been rejected by the Chases; and that so far from their being able to save harmless and indemnify their endorsers, or to free their minds from the dread of their heavy responsibility, that it was not in their power to pay the discounts. The complainants were forced to pay the discounts, and to retain on themselves their responsibility for the principal, they became extremely solicitous to obtain counter-security other than what they had received, and that effected, as no means of an immediate plan presented itself by which they were effectually to be extricated, they were willing, or rather consented, to remain the endorsers. But to obtain that counter-security, the complainants solicitously appealed [**29]  to the Chases, from whom they received promises of doing all in their power. Various projects were made by which they were not only to be indemnified ultimately, but freed from the dread of an immediate call by the City Bank, either for the whole or partial payments, until the funds of the Chases should be productive; ultimately the whole terminated in the deed of the 1st March 1820. And if the complainants are to be restricted to that deed, and the principles laid down in this decree, to wit, their right to avail themselves of the mortgage of 1809, to cover not only the $ 10,000, but all their subsequent engagements, then, so far from receiving additional counter-security to that which they had, if the moiety of T. Chase, in the mortgaged premises, extended to the whole of the endorsements, so far from the deed of 1820 being an additional security, it reduced that which they had $ 15,000. This deed, when sent to the complainants, who most evidently were not apprised of their rights under the deed of 1809, to secure themselves from the pressing demands of the City Bank, and to obtain time, they were desirous should be sanctioned by that institution; but on consideration the bank rejected [**30]  it, and thereby left the complainants in their former predicament, bound to meet the discounts, and ultimately the whole claim. On that deed reliance is now placed by the defendants to defeat the bill; and whether the deed of itself ought to bar the demand, and close all claim on the part of the complainants under the deed of 1809, justly and equitably, if correctly brought before the court, is deemed not material, because, as is contended, it is now before the court in that form in which its merits are of no importance, provided the facts set forth in the plea, through which it presents itself to the court, are established, and this because the complainants failed to set the plea down for argument, but replied to the same, and thereby placed the fact of its truth, and not its merits, to the attention of the court.

As then it appears to the court that the complainants, exclusive of the deed of the 1st of March 1820, are entitled to relief, the only subjects remaining for consideration are, is that deed of itself a bar, or has the manner in which it has been brought to the court's attention been such as must cause the bill to be dismissed?

A plea in equity is a special matter [**31]  pleaded by a defendant to a bill, or to some part thereof, shewing and relying on one or more facts set forth in the plea, as a cause why the plaintiff should not be relieved; it is nothing more than a special answer, shewing or relying on one or more things why the suit should either be dismissed or barred. 1 Harrison's Cha. Pr. 218. From the above definition it appears, that in substance a plea and a special answer is the same thing; and one would conclude they would be treated in conducting and determining the cause alike. But it is contended, that the authorities prove that by replying to a plea, and not causing it to be set down to be argued, its sufficiency is admitted, and if proved to be true, the bill must be dismissed, notwithstanding the court should be of the opinion that the matter relied on in the plea ought not to bar the claim, or cause the bill to be dismissed. I am inclined to believe this is the first time in this state, where an attempt has been made to dismiss a bill by a plea defective in itself, and presenting to the court no legal or equitable defence. I am not apprised of the present practice in the court of chancery of England, but the cases from which the [**32]  modern compilers have deduced the rules found in Mitford, Maddox and Newland's Addition of Harrison's Chancery, are not of modern date, and the reasons given for dismissing a bill on a defective plea, because it was replied to, are by no means satisfactory, and the authorities in regard to pleas are variant. According to Harrison's Practice, a plea may rely on one or more facts; according to Mitford "the defence proper for a plea is such as reduces the cause, or some part of it, to a single point, and from thence creates a bar to the suit." Mitford, 177. The same book, 198, lays down the following position: "If the plaintiff sets down the plea to be argued, he admits the truth of the plea." The authority referred to by Mitford for the position, is Urlin vs.    , 1 Vernon, 332, determined in the year 1685. In that case the defendant plead, "that the plaintiff brought a former suit for the same matters, which suit is still dependant for aught he knows to the contrary." It seems, that the defendant in that cause set the plea down to be argued, and on the argument it was, (and according to my judgment correctly,) "insisted that the plea was not good, because he does not positively aver [**33]  that the former suit is still depending, and no issue can be taken on his knowledge to the contrary." But the Master of the Rolls allowed the plea; and for what reason? "Because the defendant ought not to have set it down to be argued, for by that he admits that the former suit for the same matter is depending." If this is to govern, every defendant, whose plea is false, will set it down for argument, and thus establish its truth. If then the plaintiff sets the plea down for argument, he admits its truth. And in Mitford 240, we find another rule; if both of them be correct, the complainants are placed in a serious dilemma. For "if the plea, on argument, is held to be good in law, or the plaintiff admits it to be so by replying to it, the truth of the plea is the only subject in question remaining; and if the defendant proves the truth of the matter pleaded, the suit, so far as the plea extends, is barred, even although the plea is not good either in point of form or substance. Mitford, 241. Those, therefore, who conduct the defences by pleas, and not by answers, must have one point yielded to them, either the law or the fact; for if you think proper to call in question the lawfulness [**34]  of the plea, you must set it down for argument, and thereby admit its truth; if you are disposed to question the truth of the facts, you must first make up your mind to yield the point of law. But if the same matters were relied on as a defence in an answer, the defendant would have first to prove their truth, before their effect would be taken into consideration. And the reason given for those most extraordinary positions is, "because by having the judgment of the court upon that point, the parties are saved the expense of an examination." But the plea must be confined to "a single point;" for "it would be highly improper that the court should first give judgment upon the circumstances, and that an examination should come afterwards." Harrison's Ch. Pr 218. Chapman vs. Turner, 1 Alk. 54. Notwithstanding the justly exalted character of the person whose reasons are above stated, no less a man than Lord Hardwicke, yet to me they are far from being satisfactory.

To me it seems as highly improper for the court first to give judgment on one point as on several, until the fact or facts were established on which the point or points arose. Again, how is expense to be saved? For it seems [**35]  "even after the argument of the plea, and allowance thereof by the court, the plaintiff may, by filing a replication to the plea, oblige the defendant to prove its truth." 2 Maddox, 236. So far from any expense being saved by an argument on the plea, before the facts set forth are established, additional expense must be incurred. First, on the argument of the law; and secondly, of the facts; and if they are proved not to be true, the court has been called on to determine a case not before them. If I was perfectly satisfied that the facts stated in the plea in the cause under consideration were true, yet, as in my judgment they constitute no legal or equitable defence, I should feel myself bound to overrule the plea, notwithstanding the complainants had replied to it. But in this cause it will be found no replication ever was entered. I agree with the present disposition of English courts of chancery, as communicated by Mitford, 181, "there is little disposition in the courts of equity to countenance those defences which tend to prevent the progress of a suit to a hearing in the ordinary way, whatever the expense of the proceeding may be."

The defendants, S. and T. Chase, filed [**36]  their answers on the 6th of December 1821, and on the 15th of the same month a commission to take the evidence issued by consent. If it was competent for the defendants to defeat the present bill on account of the complainants' replying to their plea; yet as no replication appears in the cause, either by the papers or the docket entries, that part of the defence, much relied on at the trial, is removed.

On the whole, being satisfied of the great justice and equity of the complainants, and that they are entitled to relief--Decreed, that unless the defendants shall, on or before the nineteenth day of April next, pay to the complainants, or bring into this court to be paid to them, the sum of $ 43,960 70, with interest from the 18th of April last on $ 35,665, (a part thereof,) until paid, together with the costs of this suit, that the property included in the mortgage from Samuel Chase, deceased, to Nicholas G. Ridgely, one of the complainants, bearing date the 21st of October 1809, and the property also included in a deed from Samuel Chase, one of the defendants, to the complainants, bearing date the 1st of February 1819, except such part of the property included in the last deed [**37]  that was conveyed by the said Samuel Chase to Richard M. Chase, one of the defendants, in trust, by a deed bearing date the 30th of August 1817, shall be sold. That Samuel Moale, be and he is hereby appointed trustee to make the said sale, &c. From this decree the defendants appealed to this Court.  

DISPOSITION:
REVERSED.  

HEADNOTES:

Where A had mortgaged to N certain property to indemnify him against any liability for his endorsements of sundry promissory notes, to be drawn by S in favour of T, and by him endorsed to N, not exceeding $ 10,000, to be negotiated for the accommodation of S and T, and such notes were so drawn, endorsed and negotiated; and N afterwards became the endorser of other notes, drawn and endorsed by S and T, for other sums of money, and negotiated for their use; and A had by deed transferred to S and T the property thus mortgaged to N, and T had conveyed to R, in trust for the benefit of certain of his creditors, his moiety of the property so conveyed to him--Held, that the moiety of T in the property conveyed to him by A, could not be made responsible for more than the sum of $ 10,000, secured by the mortgage from A to N; and the doctrine of tacking could not be brought to bear on the case.

As against a surety the contract cannot be carried beyond the strict letter of it--it cannot be extended by equitable construction.

But as S mortgaged to N his part of the property conveyed to him by A, which had been included in the mortgage from A to N, and also other property, to secure N for his endorsements, therefore, as respects S, he by express contract made his property liable beyond the sum expressed in the mortgage from A to N.

As the evidence showed that N did not incur his further responsibility upon the immediate credit of the land mortgaged to him by A, the doctrine of tacking cannot prevail.

If the bill had been filed by N against T, as mortgagor, to foreclose the mortgage, he could not have a right to tack his claim to the prejudice of other creditors.

There is a distinction between a bill to redeem, and a bill to foreclose a mortgage; in the latter case the mortgagee cannot insist on tacking his subsequent debt, as he may do on a bill for a redemption.

The rules which have been adopted in England, in relation to pleas in bar to bills in equity, when resorted to by defendants, are considered as applicable to them here; and where the defendant's plea was not set down for hearing, and no replication was filed to it--Held, that the plea did not operate as a bar to the complainant's suit.

In the mortgage from A to N, before mentioned, it is recited that S and T were about to obtain a loan of $ 10,000 at the Union Bank, on notes to be drawn by S in favour of T, and by him endorsed to N, and to be renewed from time to time, &c. That A had agreed to secure the payment of the notes, and to indemnify N for the endorsements of the said notes, or any of them. For which purpose A conveyed certain property to N in fee, with a proviso, that if A, S and T, or either of them, should at all times save harmless N, by reason of any endorsement made by him of the notes of S, not exceeding $ 10,000, the deed was to be void. The loan was negotiated at the Union Bank, and the notes renewed from time to time, drawn and endorsed as above mentioned, until they were afterwards paid by proceeds of a loan obtained upon other notes, drawn and endorsed in like manner, at the City Bank--Held, that as the debt due at the Union Bank was closed by funds obtained from the City Bank, the mortgage from A to N remained as a security to indemnify N against any liability for his endorsements of the last mentioned notes.  

COUNSEL:
Wirt, (Attorney General of U. S.) Magruder, and Mayer, for the Appellants. The complainants, (the now appellees,) charge that they became endorsers for S. Chase, junior, of promissory notes to a large amount, which were negotiated in the Union Bank of Maryland and City Bank of Baltimore; that some of these notes they have actually paid, and the rest they will be compelled to pay. They pray a sale of the land mentioned in the deed from S. Chase, senior, to N. G. Ridgely, dated the 21st of October 1809; and they claim that by virtue of that deed, the land thereby conveyed is answerable, as well to M'Donald and Ridgely as to N. G. Ridgely, for the amount of the endorsements by them; and that they are entitled to be preferred to the creditors of T. Chase, in the distribution of the proceeds of the sale of his portion of the land. The different defendants take different grounds [**38]  of defence. S. and T. Chase by plea set forth the deed of the 1st of March 1820, and insist that that deed is a bar to the relief sought of them. J. T. Chase and R. M. Chase, creditors of T. Chase, insist that his portion of the land ought not to be sold for the payment of the complainants' claim, until it is ascertained that all the property mortgaged by S. Chase, junior, to the complainants, and which is unquestionably answerable for their claims, should prove insufficient. The Farmers' Bank of Maryland, another of the creditors of T. Chase, and the payment of whose debt was secured by the deed of the 1st of March 1820 to R. M. Chase, know nothing of the claims of the complainants, but insist that the claim of the bank is entitled to a preference to any claim the complainants may have upon the estate of T. Chase. The Farmers' Bank consented to an immediate sale of the premises, leaving the question of preference to be decided after the sale takes place. This was obviously the proper course, because, until it was ascertained that the property of S. Chase, junior, would prove insufficient to pay the debts of the complainants, it could not be known that the question of preference was [**39]  one in which the parties were interested. This course, however, could only be adopted with the consent of all the parties. The other parties insisted that the whole equity of the case should be settled before a sale was decreed, and of course this part of the answer of the Farmers' Bank is of no importance.

The chancellor decided the whole equity of the case in favour of the complainants--overruled the plea, and adjudged that the property conveyed by the deed was answerable, as well for the amount of endorsements by M'Donald and Ridgely, as by N. G. Ridgely, and that all of them must be paid before the creditors of T. Chase could claim to be paid out of the proceeds of sale of T. Chase's part of the land.

Three questions arise in this case. 1. The effect of the plea. 2. The claim of M'Donald and Ridgely. Is the property conveyed by the deed of S Chase, senior, to be charged with the payment of any part of that claim? 3. Can N. G. Ridgely ask a sale of this property to reimburse to him any part of the money which he alleges to have been paid by him?

1. With respect to the plea, it was for the complainants to decide whether they would admit the truth of it, and deny its [**40]  sufficiency, or admit its sufficiency, and deny its truth. The latter was to be done by a general replication. If they intended to admit the matters set forth, although true, to be insufficient in law, then they ought to have set down the case for hearing upon the plea. It is stated in Mitford, 240, that if the plea is upon argument held to be good in law, or the plaintiff admits it to be so by replying to it, the truth of the plea is the only subject of question remaining, so far as the plea extends. If the defendant proves the truth of the matter pleaded, the suit, so far as the plea extends, is barred, even though the plea is not good, either in point of form or substance. See also Cooper's Plead. 233. The truth of the matters set forth and relied on in the plea cannot be contested. If then the complainants did not choose to take the judgment of the court upon the sufficiency of the plea, but has in truth admitted its sufficiency, and put in issue the truth of the matters contained in it, then "the suit, so far as the plea extends, is barred." In the court below, it was considered that the complainants had put in issue the truth of the matter in the plea. A commission had been issued [**41]  to take testimony, which of course was irregular, until a general replication was put in. It was discovered, however, by the chancellor, after the argument, that the complainants had omitted to put in any general replication. Of course, as the case had not been set down for hearing on bill and answer, there was no case ready for decree. The error being discovered at that time, and before any decree was pronounced, the course to have been taken is pointed out in the books of practice. "Where by mistake, (says Mitford, 257,) a replication has not been filed, and yet witnesses have been examined, the court has permitted the replication to be filed nunc pro tunc." This might have been done in the court below, and then the only question upon the plea was as to the truth of it; but it was not done, and then the parties were not at issue. Nothing set forth in any of the answers was admitted, or denied, and this cause was in the situation of a suit at law, in which the defendant has pleaded, and the plaintiff has yet to decide whether he will take issue upon the truth or sufficiency of the matter pleaded--whether he will reply or demur. The error on the part of the complainants not having [**42]  been corrected, after the argument, as it might have been nunc pro tunc, the question is, can it be corrected in this court? Can this court permit the replication to be filed nunc pro tunc? This is a question in which the defendants can feel no interest. Quacunque via data, the law is with them. If the replication is received now, then it admits the sufficiency of the plea, if the matters pleaded be true, and the truth of them is incontestible. Of course the chancellor erred in overruling the plea, instead of decreeing that "the suit, so far as the plea extends, is barred," as all the authorities explicitly tell us. If on the other hand a replication cannot be received in this court, nunc pro tunc, then, most obviously, the case before the court is one which has never been ready for hearing. The complainants, who alone could do it, have never put the cause at issue; and this being the case, is it a question which in a court of dernier resort it would be respectful to argue, whether a decree in favour of the complainants, pronounced in a cause before the parties are at issue in that cause, can be affirmed?

2. It seems that M'Donald and Ridgely also endorsed the notes of S. Chase,  [**43]  junior, and that N. G. Ridgely, of that firm, is the same N. G. Ridgely to whom the deed of 1809 was executed by S. Chase, senior. The question is, is the property conveyed by S. Chase, senior, answerable not only for the whole amount of endorsements by the individual N. G. Ridgely, but also for the endorsements by the firm of M'Donald and Ridgely, and this merely because he was a partner of that firm? The decree answers the question in the affirmative, and for the reasons set forth. A particular examination of these reasons is deemed to be unnecessary, because the question itself has been too well and too long settled, LOW to be deemed vexata questio. The complainants, in order to sustain this claim, must treat this deed as a mortgage, and insist that they have a right to tack to the mortgage debt, this other debt, because it is due to the mortgagee, as well as to his partner, who is no party to that mortgage. Let it be assumed for the present that the deed of 1809 is a mortgage, and that this second claim, which it is proposed to tack to the original debt, was in fact due to the mortgagee himself individually, and (which it certainly is not,) a debt due from the mortgagor, the proposition [**44]  to be maintained on the part of the complainants in the court below is, that the assignees of the equity of redemption can only redeem the property upon payment of both these claims. How many centuries have gone by since the law of this part of the case was conclusively settled? The defendants are either purchasers or mortgagees of the equity of redemption. The law upon this subject, as it has long been settled, and will be found in all the authorities, is stated by Cruise, tit. Mortgages, ch. 3, s. 27, 28, 34. It is now settled, that a bond (given by mortgagor to mortgagee,) cannot be tacked to a mortgage, even as against the mortgagor, though the heir at law can redeem only by paying both debts. Not against a purchaser or assignee of the equity of redemption, who may redeem without discharging a bond debt due to the mortgagee; because, the lands in the hands of the alienee can be charged with nothing but what is an immediate lien thereon, which the bond is not. They referred to Francis's Maxims, 2, 7. Brace vs. Duchess of Marlborough, 2 P. Wms. 491. 1 Pow. on Mortg. 391, 398, 399, 400. Lowthian vs. Hasel, 3 Bro Ch. Rep. 163. Anonymous, 3 Salk. 84. Straton vs. Rastall, 2 T. R. 366,  [**45]  370. Hayes vs. Ward, 4 Johns. Ch. Rep. 130. It is then the settled law that these premises in the hands of the alienees of the equity of redemption cannot be charged with the payment of the debt due to M'Donald and Ridgely, nor with the payment of any debt due to N. G. Ridgely individually, other than that which it was the avowed object of the deed to secure. Upon this point the appellants place no reliance on the letters of N. G. Ridgely to be found in the record. It is at once admitted that they cannot be used to interpret the contract between him, and S. Chase, senior, or to ascertain his rights under the deed. It is by established principles, and rules of construction, not by the opinions, recollections, or forgetfulness of N. G. Ridgely, that the question is to be decided.

3. The third point is one which will require a more particular consideration. N. G. Ridgely, the person to whom the deed of 1809 was executed, has been obliged to pay some notes drawn by S. Chase, junior, and which were endorsed by Ridgely. Can he resort to this property to reimburse any, and if any, what part of this money? The authorities already cited prove that he cannot claim more than the $ 10,000,  [**46]  with interest. Can he claim that? These facts are proved in the record, and will not be denied--A few days after the execution of the deed of 1809, the loan, which the deed tells us was then about to be negotiated, was actually negotiated. Notes drawn by S. Chase, junior, payable to T. Chase, and endorsed by T. Chase and N. G. Ridgely, amounting to $ 10,000, were discounted by the Union Bank of Maryland; and for the amount of that loan, the payment of the debt then contracted, it will not be contested by us, that this property is answerable. Of that debt $ 5,000, it is expressly proved, was discharged by T. Chase, after (one or the second) renewal. When the other $ 5,000 were paid, or how paid, it does not appear. But it is in proof that the Union Bank of Maryland has now no such claim--that the debt has been discharged there; and it will not be pretended that N. G. Ridgely has been called upon by that bank, or any assignee of that bank, to pay one cent of the debt, which the deed of 1809 informs us was then about to be negotiated. On our part it will not be denied, that notes to a large amount drawn by S. Chase, junior, and endorsed by N. G. Ridgely, were negotiated at the Union Bank.  [**47]  All of them, it is in proof, were discharged some ten or twelve years ago, and none of them paid by N. G. Ridgely. Again, it is a fact admitted in the case, that S. Chase, junior, some years subsequently to the deed of 1809, became largely indebted to the City Bank of Baltimore; that N. G. Ridgely was one of the endorsers of his notes. These notes, however, were not payable to T. Chase, but to N. G. Ridgely. And it is further admitted, that these notes Ridgely has been obliged to pay. On the part of the appellees it may be contended, that the debt contracted with the City Bank, and the funds thereby obtained, enabled S. Chase, junior, to pay off the debt due to the Union Bank. With respect to which we have only to say, there are circumstances which may be thought to render this probable, but there is no proof of it. It is at best but conjecture. Further, according to our view of the law, it is wholly unimportant whether this be proved or not, there being no proof that S. Chase, senior, ever consented that his property should be made answerable for any debt contracted, no matter when or for what purpose, with the City Bank of Baltimore. The deed, and nothing but the deed, must explain [**48]  the meaning of the parties to it. The essential parts, in the discussion of the question, are the recital and the proviso. It is a deed executed by S. Chase, senior, to N. G. Ridgely, and professes to convey to the latter certain lots in the city of Baltimore belonging to the former. For what purpose was it executed? "Whereas Samuel Chase, the younger, and Thomas Chase, of Baltimore county, sons of the said Samuel Chase, the elder, are about to obtain a loan of ten thousand dollars from the Union Bank of Maryland, on notes drawn by the said Samuel Chase, the younger, payable sixty days after date to the said Thomas Chase and the said Nicholas G. Ridgely, and which said notes are to be renewed from time to time as the same become due. And whereas the said Samuel Chase, the elder, hath agreed to secure the payment of the said notes, and to indemnify the said Nicholas G. Ridgely for the endorsement of said notes, or any of them." Such is the recital of the deed. It then describes the property to be conveyed by it, and afterwards comes the proviso or condition in these words: "Provided always, and it is the true intent and meaning of these presents, and of the said parties hereunto, that [**49]  if the said Samuel Chase, the elder, Samuel Chase, the younger, and Thomas Chase, or either of them, their heirs, executors or administrators, shall at all times hereafter save harmless and indemnify the said Nicholas G. Ridgely, by reason of any endorsement made by him of the notes of the said Samuel Chase, the younger, not exceeding the said sum of ten thousand dollars, then," &c. The bill of complaint carefully avoids all notice of the recital in the deed, which shows beyond all question the intent of the parties, and for what debt the elder Mr. Chase was willing to make his property responsible. It may safely be admitted by us, that the expressions of the proviso or condition, but for the recital, would have charged this property with the payment of any debt, (not exceeding $ 10,000,) which S. Chase, junior, contracted, even at another time and from another bank. But the recital confines it to a particular debt. A debt then, not years hence, only then about to be contracted to secure the payment, when it was demanded, of a sum of money which was to be borrowed, not of any person nor yet of any banking institution, but of one bank alone, the Union Bank of Maryland, and a debt of [**50]  $ 10,000, and no more, which was to be borrowed only of the Union Bank, and not upon notes drawn and endorsed, no matter by whom, but "on notes drawn by the said Samuel Chase, the younger, payable sixty days after date to said Thomas Chase, and endorsed by said Thomas Chase, and a certain Nicholas G. Ridgely, and which notes are to be renewed from time to time," &c. It is contended that this deed is an indemnity offered to N. G. Ridgely, only to induce him to endorse particular notes, to be negotiated at a particular bank, and that before he can claim a sale of this property by virtue of this deed, in order to repay monies which at any time he may have been obliged to pay for S. Chase, junior, he must prove not merely that he has been compelled to pay money for S. Chase, junior, but that the money which he was thus compelled to pay, was a part of the very debt spoken of in the deed of 1809--a debt of $ 10,000 then about to be contracted with the Union Bank of Maryland, and to be evidenced by notes drawn by S. Chase, junior, sixty days after date to T. Chase, and endorsed by T. Chase and N. G. Ridgely. If this proposition be sustained by us, Ridgely clearly has no title to relief. The [**51]  debt which he claims to have paid was a debt contracted with a bank, not in existence till years after this debt was contracted, and the notes were drawn payable, not to T. Chase, but to N. G. Ridgely himself. In 3 Cruise's Digest, sect. 8, page 416, (American edition,) it is laid down, that where there is a particular recital in a deed, and general words of release are inserted, the generality of the words shall be qualified by the recital. So also 1 Pow. on Cont. 390. "The principle is, that the matter in hand is always presumed to be in the mind and thoughts of the speaker, (or writer,) though his words seem to admit a larger sense, and therefore the generality of the words used, shall be restrained by the particular occasion." Now if this be the law, as it certainly is, is it possible to misunderstand the meaning of the parties, or to doubt the true construction of this deed? Why is it executed? Because S. Chase, junior, and T. Chase, are about to borrow money of a particular bank; and because N. G. Ridgely is to be one of the endorsers of the notes, which that bank is to discount; and because the elder S. Chase has agreed to secure the payment of this debt, and to indemnify N.  [**52]  G. Ridgely for the endorsement of the said notes, or any of them. This is the avowed and only purpose of the parties to the deed; and when in the proviso it is declared that the deed shall be of no effect if N. G. Ridgely should be saved harmless and indemnified by reason of any endorsement made by him of the notes of S. Chase, junior, the law as well as common sense, confine these expressions to the notes spoken of in the recital, to the notes which are then to be negotiated, and the notes which from time to time are to be the renewals. Such was the matter in hand, and such matter only was in the minds and thoughts of the parties. If then the case was res integra, one would suppose it was impossible for a rational mind to entertain a doubt upon it. But it has repeatedly, and in different courts, been adjudicated, and the claim of N. G. Ridgely is at war with decisions which all courts are bound to respect.

This deed is not a mortgage. The grantor in it is no debtor of N. G. Ridgely. But a debt is about to be contracted by a third person--N. G. Ridgely may eventually be the creditor of that third person, and the grantor of the deed makes his property, not himself, responsible [**53]  for the debt. The grantor undertakes to secure, as far as the property conveyed will secure, a particular debt, and he takes especial care to say what debt he does mean to secure. It is a debt then about to be created--a debt to be due from S. Chase, junior, and T. Chase, to the Union Bank, and which N. G. Ridgely may be bound to pay. That debt N. G. Ridgely has never been called upon to pay. Every cent of it has been paid, perhaps a part by S. Chase, senior--certainly not a cent of it by N. G. Ridgely. But N. G. Ridgely became surety for another debt, to another creditor, and insists that he is to be indemnified against any loss which he may sustain by reason of his endorsement of other notes, because for the benefit of the same persons. Arlington vs. Merricke, 3 Saund. 403, was an action of debt upon a bond, which recited that the postmaster general, who was the plaintiff, had deputed a third person to be his deputy postmaster for six months. The condition was for the faithful execution of the office by that third person, during all the time that he should continue postmaster. He was continued more than six months in the office, and for his default made after the six months had expired,  [**54]  the suit was brought against the surety. Now it is utterly impossible that the property conveyed by the deed of 1809 can be answerable, except for the debt then created, and for a debt due to the Union Bank, unless the surety was responsible in the case referred to. The condition here makes him responsible for the faithful execution of the office during the time that the deputy remained in the office, and during a part of the time, and after the six months expired, he made default. Yet the surety was held not to be liable. Why? The court held, that the general words of the undertaking were confined to the time mentioned in the recital. It is utterly impossible to charge the property conveyed by the deed of 1809, and by virtue of that deed, with one cent of the debt due from S. Chase, junior, to N. G. Ridgely, without overruling the decision of Arlington vs. Merricke. Will the court take upon itself to overrule that decision? In England, in different ages, by all its courts, it has been recognized as good law. In this country the correctness of it is yet to be questioned. It is in all the books, and by all the judges spoken of as the "leading case upon the subject"--never to be departed [**55]  from. The same doctrine had been sanctioned in the previous case of Horton vs. Day, 22 Car. I, referred to by one of the judges in the argument. Bartlett vs. Attorney General, in 1709. Bowdage vs. Attorney General, in the same year. So also in a yet stronger case, Liverpool Water Works vs. Atkinson, 6 East, 507, where the bond in suit recited that the defendant himself had agreed with the plaintiffs to collect their revenues "from time to time for twelve months;" and the condition was that he should account at all times thereafter, "during the continuance of such his employment, or for so long as he should continue to be employed." The court considered themselves governed by the case of Arlington vs. Merricke, and that the general terms of the engagement were restrained by the time mentioned in the recital. See also the case of Pearsall vs. Summersett, 4 Taunt. 593. The cases of The Wardens of St. Saviour's Southwark, vs. Bostock, 5 Bos. & Pull. 175. Hassell & Clark vs. Long, 2 Maule & Selw. 363. Wright vs. Russell, 2 W. Blk. Rep. 931. S. C. 3 Wils. Rep. 532, 539; and Grant vs. Naylor, 4 Cranch, 224, 234--all of them expressly affirming the doctrine for which we contend. Here the property [**56]  conveyed is made answerable for one particular debt--for notes carefully described, and then (not from time to time,) to be negotiated. It is an undertaking by a third person to secure, as far as the property would secure, the debt of another, and the words of the deed must receive the same construction that would have been given to them if S. Chase, senior, had executed a bond containing the same recital and condition. It cannot be said that the cases cited do not apply, because they are decisions at law, and this a case of equity. The rules of construction are the same in courts of law and of equity. The court say, in Wright vs. Russell, 3 Wils. 539, "courts of equity are favourable to securities; for where they are not strictly bound at law, equity will not bind them." The debt then which S. Chase, senior, engaged should not be paid by N. G. Ridgely, was a debt due to the Union Bank of Maryland; and no such debt has Ridgely paid. He has made himself responsible for other debts contracted by the same individual, but those are debts not mentioned in the deed. Treat the deed as a mortgage executed by the debtor himself, and then the mortgage debt is paid off. Can the mortgagee claim [**57]  that the mortgaged premises be sold to pay another debt, not provided for in the deed? In Kirby and others vs. The Duke of Marlborough and Coburn, 2 Maule & Selw. 18, it was held, that a bond entered into by the defendants to the plaintiffs, to enable Coburn to carry on his trade, conditioned for the payment of all such sums not exceeding £  3000, which should at any time thereafter be advanced by the plaintiffs to Coburn, was not a continuing guarantee to the extent of £  3000 for advances made at any time, but only a guarantee for advances once made to the extent of £  3000. So also in Rogers vs. Warner, 8 Johns. Rep. 92--"If D wishes to take goods of you on credit, we are willing to lend our names as securities for any amount he may wish." D took goods on credit several times, and paid for them. About 18 months after the letter of credit was dated, he purchased upon credit other goods, for which he did not pay--Decided, that the letter of credit did not extend beyond the first parcel of goods. But it has been asked, what difference did it make to the elder S. Chase, with whom the debt was contracted? Perhaps if it were necessary, it could be shown there were many and good reasons [**58]  why he should insist that the debt, for which he was answerable, should be contracted with the Union Bank, and no where else. But it is not necessary to assign a reason for it. Sic volo, sic jubeo, is the language of Mr. Chase, and stat pro ratione voluntas, says the law in this case. He had a right to say to the endorser of these notes--If you wish me to indemnify you, take care of whom the money is borrowed--take care by whom the notes are drawn--to whom payable, and by whom they are endorsed; and take care, too, that the notes thus to be drawn, endorsed and negotiated, do not exceed $ 10,000. All these directions are disregarded. He endorses notes to a much larger amount. The debt actually contracted at the time is paid off. The money now claimed was money borrowed, it is not known when or for what purpose. All that we learn about it is from N. G. Ridgely himself, that he did endorse the paper, because the deed of 1809 had been executed.

Taney, Moale and R. Johnson, for the Appellees. 1. It is not the practice in our court of chancery to put in a replication where a commission to take testimony (as in this case,) is issued by consent. Such consent is a waiver of a replication.  [**59]  But if consent is not given by the parties to issue a commission, then, as a mere matter of form, the register puts in the replication, and makes up the issue. If the plea is proved to be true, then it is a bar to the action; but the plea in that case must be to the whole of the bill. Here it is not. 2 Madd. Chan. 299. The plea not being replied to, the benefit of denial is reserved for final hearing. Cooper's Plead. 233, 229. 2 Com. Dig. tit. Chancery, (I 2,) 274, cites Abr. Ca. 41.

2. The notes for $ 7,665 and for $ 18,000, can be tacked to the mortgage of 1809. They were all negotiated partly at the Union Bank, and the whole afterwards at the City Bank. This is admitted in the answer. If a third mortgagee buys in the first mortgage, he can tack his third mortgage to the first, and come in, in preference to the second, for his debt due on the third. So where the first mortgagee lends money, or makes advances, looking to the mortgaged premises as security, he can tack the amount of the advances to his mortgage. Pow. on Mortg. 532 Ex parte Hearn, 1 Buck on Bankruptcy, 165.

The recitals in the deed from T. Chase to R. M. Chase, are evidence against the defendants of the existence [**60]  of the deed from S. Chase to his sons, S. and T. Chase. When a mortgagor redeems the mortgaged premises he must pay the mortgage debt, and all advances. 1 Eq. Ca. Ab. (G) pl. 1.

R. M. Chase and The Farmers' Bank did not lend their money with a view to this property. Cooper's Plead. 281, 282. Sugd. 543, (and notes,) 393. Berry vs. Mutual Insurance Company, 2 Johns. Ch. Rep. 608. The right of tacking is to prevent a circuity of action.

3. R. M. Chase was bound to take notice of the deed of 1809, and he was therefore a purchaser with notice. Every thing calculated to put the party upon inquiry is notice. Sugd. 498, 542. The laws directing the recording of deeds were for the purpose of giving notice. Mertins vs. Jolliffe, Ambl. 313. Taylor vs. Stibbert, 2 Ves. jr. 440. Jennings vs. Moore, 2 Vern. 609. Daniels vs. Davison, 16 Ves. 249. Frost vs. Beekman, 1 Johns. Ch. Rep. 299. Tucker vs. Woods, 12 Johns. Rep. 190. Billington's Lessee vs. Welsh, 5 Binney's Rep 134. 2 Fonbl. 151. A purchaser without notice cannot avail himself of it without relying upon it in his answer. 2 Madd. Ch. 323. 2 Eq. Ca. Ab. 682, (note b.) Harris vs. Ingledew, 3 P. Wms. 91. Moore vs. Mayhew, 1 Ca. in Chan.  [**61]  34.

The complainants are recti in curia. When the bill was filed they had paid one note, and discounts upon others, to an amount of upwards of $ 5,000. Ranelaugh vs. Hays, 1 Vern. 190. Lee vs. Rook, Mos. 318; and Norwood vs. Norwood, 4 Harr. & Johns. 112.

The City Bank might have filed the bill, but as they did not, the complainants could do so.

Curia adv. vult.  

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

OPINIONBY:
STEPHEN 

OPINION:

 [*192]  STEPHEN, J. at this term delivered the opinion of the Court. [After stating the allegations in the bill, answers and plea, he proceeded as follows:]
In this case several important principles of equitable jurisprudence present themselves for the consideration and decision of this court. Among them will be found the doctrine of tacking, as it is termed by the writers on chancery law, which gives a mortgagee or incumbrancer, under certain circumstances, the right, not only to have the debt, secured by a mortgage, satisfied out of the mortgaged property, but also other claims or demands which the mortgagee may have against the mortgagor, although the property mortgaged [**62]  is in nowise made expressly responsible therefor. To what extent this principle is to operate upon the rights of the parties now before this court, is a question of considerable interest and importance to them. By the decree of the chancellor, from which they have appealed, the doctrine has been recognized as bearing upon this case, and applied in its fullest latitude. And the duty now devolves upon this court of reviewing that decree, and of determining whether the extent, to which it has been carried, be justifiable upon authority, and the special circumstances of this case.
It is indisputably true, that the right of tacking is not founded upon contract or express stipulation, but has its foundation principally, if not exclusively, in the policy of the law, which is ever solicitous to prevent a multiplicity of suits, and avoid a 

 [*193]  circuity of action. By the civil law, the mortgage is properly a security only for the debt itself for which it was given, and the consequences of it, as the principal sum and interest, and the costs and damages laid out in preserving it. But according to the equitable jurisprudence of the English law, the rule is, that he who will have equity [**63]  to help him, where the law cannot, shall do equity to the party against whom he seeks to be relieved. 2 Fonbl. 272.
According to the principles which will govern the decision of this case, it is not indispensably necessary to decide upon the truth of the much controverted fact, whether T. Chase participated in the loans obtained from the Union and City Banks or not; as the result of this cause, according to the view which has been taken of it by this tribunal, will not essentially depend upon that fact. Even if he did so participate, can his moiety of the property mortgaged by his father to N. G. Ridgely, which was subsequently conveyed to him, and by him conveyed to R. M. Chase, be made responsible for more than the sum secured by the mortgage of the 21st of October 1809? That deed of mortgage was executed to N. G. Ridgely as an indemnity to him against any loss which he might sustain in consequence of his endorsements for his (the mortgagor's) two sons, S. and T. Chase, to an amount not exceeding the sum of $ 10,000. If S. Chase, the mortgagor, were now living, and this proceeding had been instituted against him to make the mortgaged property [**64]  responsible to a larger amount than that stipulated by the deed, can it be believed that the attempt would eventually prove to be successful? As against a surety the contract cannot be carried beyond the strict letter of it. It cannot be extended by equitable construction. Straton vs. Rastall, 2 Term. R. 370. In support of the same doctrine, that a surety is not liable beyond the letter of his engagement, see Wright vs. Russell, 3 Wils. Ch. 539. A surety, who becomes bound for the good conduct of a clerk to A, is not bound to him and a partner subsequently taken into partnership. In this last case the court say, courts of equity are favorable to sureties, for where they are not strictly bound at law, a court of equity will not bind them. That the undertaking of a surety shall be construed strictly--see also Melville vs. Hayden, 5 Serg. & Low. 389. 

 [*194]  By the express agreement of the parties, the mortgagor's liability was not to exceed the sum of $ 10,000; and N. G. Ridgely would have no right to look to the land, mortgaged as his security, for any responsibilities which he might incur over and beyond that amount. The rule "expressum  [**65]   facit cessare tacitum," would be strictly applicable to such a case, and would effectually exclude any claim founded upon the principle of tacking.
If then S. Chase, the mortgagor, would not be responsible for more than the sum secured by his deed of indemnity, what is there is the case, which so peculiarly affects his assignees in point of equity, as to subject them to a greater liability? S. Chase, one of the defendants, it is true, by his deed of the 1st of February 1819, mortgaged his part of the wharf property conveyed to him by his father, and a part of a tract of land called Elizabeth's Diligence, to M'Donald & Ridgely, and N. G. Ridgely, to secure them for their endorsements on his behalf. So far then as respects him, the case is clear that he has made his property liable beyond the sum expressed in the original mortgage, by express contract. It is not necessary then to call in aid the principle of tacking to make his property answerable to the complainants for the extinguishment of their claim. The decree of the court below, therefore, as respects him, is perfectly correct, and consistent with the principles of law, equity and justice. But so far as [**66]  it has reference to the case of T. Chase, it presents to this court a very different aspect. He has encumbered his property by no express contract or stipulation with the complainants, or either of them; and if it is to be charged at all with the payment of their demands, it must be by resorting to the doctrine of tacking, according to the principles which prevail in courts of equitable jurisdiction. Can his moiety of the property mortgaged by the deed of his father in 1809, to N. G. Ridgely, under the circumstances of this case, and according to those principles, be made responsible in the hands of R. M. Chase, his trustee, for a greater amount than the sum of $ 10,000, secured by that mortgage, with interest? In order to solve this question, and arrive at a just conclusion upon this part of the case, it is essentially important to ascertain whether or not N. G. Ridgely, or M'Donald and Ridgely, 

 [*195]  when they endorsed the notes of S. Chase with T. Chase, looked to the land mortgaged by S. Chase in his lifetime to N. G. Ridgely, as a security or indemnity to them, beyond the amount specified in that mortgage? If they did not, it would [**67]  seem to follow as a necessary consequence from the established principles of chancery jurisprudence, that the doctrine of tacking cannot be brought to bear upon their case. That they did not incur such responsibilities upon the immediate credit of the land mortgaged, it is only necessary to advert to some of the facts and circumstances proved in the cause. In a letter addressed by M'Donald and Ridgely, and written by N. G. Ridgely, to S. Chase, the writer, (N. G. Ridgely,) expressly states, that he had entirely forgotten that a mortgage had ever been executed to him by S. Chase, deceased, until he had been reminded of that fact by the letter of S. Chase, one of the defendants. In this letter are likewise the following strong expressions: "Indeed, so unbounded was our confidence, that we never had looked into the papers which you had given us as security, until the day we showed them to Mr. Moale." In the same letter are also to be found the following expressions: "As the security now stands, the $ 10,000, endorsed by our N. G. R. is amply secured. The balance of $ 28,000 might have been amply secured, as the property would have sold two years ago;  [**68]  but as it may sell, (excluding Tommy's house as you propose,) 1, 2, 3 or 4 years hence, it may be very far short of ample security." Again, if they endorsed upon the credit of the property mortgaged by the deed of 1809, and considered that to be liable, why on the 1st of February 1819 take a mortgage from S. Chase of his moiety of the same property? And why, in the deed of the 1st of March 1820, agree to secure to T. Chase, in the first instance, $ 15,000 out of the proceeds of sale of his part of the wharf property, before any part thereof should be applied to the exoneration of M'Donald and Ridgely, or either of them, from their responsibilities? These circumstances are strongly indicative of the fact, that they never did rely upon or look to the land as the means of their indemnity, when the endorsements exceeded the sum of $ 10,000, secured by the original deed of mortgage.
In Brace vs. Duchess of Marlborough, 2 P. Wms. 491; 

 [*196]  upon the subject of tacking, we find the law stated to be, if a judgment creditor buys in the first mortgage, he shall not tack or unite this to his judgment, and thereby gain a preference, because the judgment [**69]  creditor does not lend his money upon the immediate view or contemplation of the real estate. In the same case there is stated to be a difference in the law, where a third mortgagee buys in a statute which is the first incumbrance, and where a statute creditor, being the third incumbrance, buys in the first mortgage; in the latter case the statute or judgment creditor, because he did not lend his money on the credit of the land, shall not unite the first mortgage to his statute or judgment; but in the former, as the land was in the view and contemplation of the lender, he shall be allowed to unite the statute to his third mortgage. If a first mortgagee lends a further sum to the mortgagor upon a statute or judgment, he shall retain against a mesne mortgagee till both the mortgage and statute or judgment be paid; because it is to be presumed that he lent his money upon the statute or judgment, as knowing he had hold of the land by the mortgage, and in confidence ventured a further sum on a security, which, though it past no present interest in the land, yet must be admitted to be a lien thereon. Brace vs. Duchess of Marlborough, 2 P. Wms. 493. Shepherd vs. Tilley, 2 Atk. 351. [**70]  But where a prior incumbrancer has a bond likewise, he cannot insist upon being paid both, which would be a prejudice to the puisne incumbrancer; but his bond shall be postponed to all other encumbrancers, whether by mortgage, judgment or statute staple, for he has not the same equity against a puisne incumbrancer, as against an heir at law, who is liable in respect of assets. These cases are cited, and the principles therein referred to, for the purpose of showing, that one of the grounds upon which the doctrine of tacking materially rests, is that the party, when he advances his money, does it upon the credit of the real security, and looks to that for payment or reimbursement. Instances or examples in further illustration of this principle, might be multiplied to a considerable extent; but the limits to which this opinion has already swelled, admonish me that it is time to draw to a conclusion.
But put the claim of the complainants upon the most favorable footing, and suppose the bill in this case to be filed by them 

 [*197]  against T. Chase, as mortgagor, to foreclose the mortgage, can it be contended that they would have a right to tack their claims, to the prejudice [**71]  of other creditors; that they would not, see Lowthian vs. Hasel, 3 Brown Ch. 162, where Lord Chancellor Thurlow said, "the only reason why the mortgagee can tack his bond to his mortgage is to prevent a circuity of suits; it is solely matter of arrangement for that purpose, for in natural justice the right has no foundation. The principle explains the rule; and therefore it can go no further; the creditor having another specific security, cannot give him, in justice, any priority. There being no foundation in justice, the only question is, whether the court is in the practice of doing it; and it has not done it in any case but that of the heir at law, and merely to prevent circuity." So also in Hamerton vs. Rogers, 1 Ves. Jr. 513, a bill of foreclosure was dismissed, with costs, so far as it sought to tack a bond to a mortgage against creditors. The principle was considered to be too clear to admit of argument.
But is the right of tacking admissible in this case upon another ground? In 1 Madd. Ch. 525, the principle is stated to be, that a distinction prevails between a bill to redeem, and a bill to foreclose; for in the latter case the mortgagee [**72]  cannot insist on tacking his subsequent debt, as he may do on a bill for a redemption. See also the Note to Coleman vs. Winch, 1 P. Wms. 776. The rule in the latter case is, that he who seeks equity must do equity; for he who will have equity to help him, where the law cannot, shall do equity to the party against whom he seeks to be relieved. 2 Fonbl. 272.
The only remaining point relied upon in the discussion of this cause, which it is proper to consider and decide, is the plea in bar founded upon the deed of the 1st of March 1820. In the case of Thompson vs. M'Kim, 6 H. & J. 302, this court have said, "the constitution and principles of the court of chancery in this state, as in New York, originally emanated from the court of chancery in England, from which source we derive our principal stock of information in chancery jurisprudence; and the general rules governing the court of chancery there, so far as they are applicable, have been adopted here, and are constantly practised upon." Pleas are a species 

 [*198]  of defence in equity, not so frequently relied upon in this state as in England; but when resorted to by a defendant,  [**73]  the rules which have been adopted in that country, in relation to them, must be considered as applicable here. In Mitford's Plead. 15, he says, "a plea is also intended to prevent further proceeding at large, by resting on some point founded on matter stated in the plea; and as it rests on that point merely, it admits, for the purposes of the plea, the truth of the facts contained in the bill, so far as they are not controverted by facts stated in the plea. Upon the sufficiency of this defence the court will also give immediate judgment, supposing the facts stated in it to be true; but the judgment, if favorable to the defendant, is not definitive; for the truth of the plea may be denied by the plaintiff by a replication, and the parties may then proceed to examine witnesses, the one to prove and the other to disprove the facts stated in the plea." 2 Madd. Ch. 295. Although the books say, that where a plea is set down for argument, the facts stated in it are admitted to be true, (Mitford 198,) yet such admission is not conclusive upon the plaintiff, but is presumed to be made for the purpose of testing the validity of the plea in point of law, founded upon such facts, supposing [**74]  them to be true. If the plaintiff replies, and takes issue upon the facts of the plea, he admits its legal sufficiency; and if the facts are found to be true, the complainants' bill must be dismissed, with costs. Mitford, 241. 2 Madd. ch. 295. In this case the plea was not set down for hearing, and consequently no judgment of the court was had upon its sufficiency; nor does it appear that any replication was ever filed, by which its sufficiency would be admitted. If in England the defendant does not set down his plea to be argued within eight days after it is filed, it is considered as abandoned, and the plaintiff is entitled to costs. 2 Madd. Ch. 295. Jordan vs. Sawkins, 3 Brown Ch. 372. But in adverting to the rule established in this case, it is not intended to adopt it as applicable to the practice of the court of chancery in this state.
From these principles, and the authorities cited in support of them, it follows, as a necessary consequence, that the plea filed in this case did not operate to bar the plaintiffs' suit.--DECREED, That the decree of the court of chancery, except as hereinafter 

 [*199]  excepted, be reversed, with costs to the appellants [**75]  by them incurred in this court. Decreed also, that there is now due to the appellees, the sum ascertained to be due by the said decree, together with legal interest thereon from the date of the said decree; and that for $ 10,000, a part of the said sum, together with legal interest upon the said $ 10,000 from the 29th of August 1819, the whole of the property and estate mentioned and contained in the deed of mortgage from Samuel Chase, deceased, to Nicholas G. Ridgely, one of the appellees, of the 21st of October 1809, is first responsible and bound for; and that for the balance of the said sum, with interest as aforesaid, the moiety of the said property and estate in the said deed of mortgage of 1809, which belonged to, and was the right of Samuel Chase, one of the appellants, as also all the property to which the said Samuel Chase was entitled, and by him conveyed to the appellees, by his deed of the 1st of February 1819, except such parts of the said last mentioned property as is contained in another deed from the said Samuel Chase to Richard M. Chase, one of the appellants, of the 30th of August 1817, is also first responsible and bound for. Decreed [**76]  also, that the chancellor pass all and every such order and decree in the premises as may be necessary to carry into effect the present decree; and that nothing herein contained shall be held or construed to affect, or in any way impair, any right which any purchaser or purchasers may have acquired to any part of the property decreed to be sold by the decree of the court of chancery in this case, under any sale or sales which may have been made of such property under or by virtue of the said decree, and under the authority of the said court of chancery; but that any such right shall be, and is hereby decreed to be, as good and valid as the same would have been, in case the said decree of the court of chancery had been in all things well and truly affirmed by the present decree of this court, or as it would have been if the said decree had not been appealed from. Nor shall the present decree be construed to affect, or in any way impair, any distribution of the proceeds of any such sale or sales, which may have been made in the court of chancery, and which may not be inconsistent with the provisions of the present decree.
DECREE REVERSED, &c.  

17 of 33 DOCUMENTS 

WYMAN vs. GRAY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

7 H. & J. 409; 1826 Md. LEXIS 49 

June, 1826, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court. Assumpsit on a promissory note, brought by the endorsee against the maker. The declaration contained a count on the note, and the usual money counts. The general issue was pleaded.

1. At the trial the plaintiff, (the appellant,) gave in evidence the following promissory note: "Baltimore, 11th Feb. 1819. $ 661 50. Six months after date, I promise to pay to the order of Bicknell & Boies, six hundred and sixty-one 50/100 dollars, for value received.

Edward Gray, Pre'st. Pataps'o Man'g. Co." (Endorsed,) "Pay the within note to Samuel Wyman.

Bicknell & Boies."

And proved the signature of Gray, the defendant in this cause; and that Daniel D. Bicknell and Jeremiah S. H. Boies were, at the time of making said note, and for a long time after, partners in trade, under the name, style and firm of Bicknell & Boies, and that after the note became due, they endorsed and delivered it to the plaintiff for a full and valuable consideration. The defendant then offered evidence to prove, that before and at the time, and after the making of the note, he was the President of the Patapsco Manufacturing Company, and that on the eleventh day of February [**2]  1819, Bicknell & Boies sold and delivered a quantity of goods to the said company, and sent them with the following bill of parcels: "Baltimore, 11th February, 1819. The Patapsco Manufacturing Co. Edward Gray, Agent, bou't. of Bicknell & Boies, 11 bales cotton, 2450 Ib. a 27 cts. $ 661 50--6 months." And that in a few days afterwards, Gray sent to Bicknell & Boies, the note in question; and that when said goods were sold, Bicknell & Boies knew that Gray was president of said company. He also offered to prove, that at the time of making said note, the said company was in good credit, and able to buy goods on their own credit, and that he Gray was not in good credit. And further offered in evidence the charter of incorporation of said company, and the following bye-laws, which constituted the president as their agent, &c. To which evidence the plaintiff, by his counsel excepted, as tending to vary by parol a written contract. But the Court, [Archer, Ch. J. and Hanson, A. J.] being divided in opinion, they refused to sustain the objection; and the evidence went to the jury. The plaintiff excepted.

2. The plaintiff then prayed the court, upon the whole evidence, to instruct the [**3]  jury, that the plaintiff was entitled to recover; which instruction, the court, being divided in opinion, refused to give. The plaintiff excepted.

3. The defendant then prayed the court, to instruct the jury--1st. If the jury shall believe from the evidence that the said note was given by Edward Gray, as agent for said company, and not on his own private account, and that it was endorsed by the payees after it became due to the plaintiff, that they must find a verdict for the defendant. 2d. If the jury should believe from the evidence, that no consideration was received by Edward Gray for said note, although a consideration was given therefor, to the Patapsco Manufacturing Company, and that said note was endorsed to the plaintiff, by the payees, after it became due, that they must find a verdict for the defendant. Both of which instructions, the court, being divided in opinion, refused to give. The defendant excepted.

4. The plaintiff offered in evidence the note herein before stated, with the endorsement thereon; and proved the handwriting of the drawer and endorsers to be the proper handwriting of Edward Gray and Bicknell and Boies respectively. To the admission of which,  [**4]  as legal evidence in the cause, the defendant objected; but the court overruled the objection, and admitted the note in evidence to the jury. The defendant excepted. The verdict and judgment being for the defendant, the plaintiff appealed to this court.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

In an action of assumpsit by W, as the endorsee of a promissory note, against G, the maker, it appeared that G was the president of an incorporated manufacturing company; that the payees of the note sold merchandise to the company, and sent it, with a bill of parcels, to the company, in which they charged them as their debtors, and that G afterwards sent the payees the note sued upon, for the amount signed by him, with the addition to his signature of the words "Prest." &c. which note was endorsed, after it fell due, to W, the plaintiff--Held, that W was not necessarily entitled to recover. That if the payees of the note, in selling to the company, gave credit to them by which the debt became theirs, and not to G, the defendant, his note, given in consideration of such debt, was but a promise to pay the debt of another, and void for the want of a sufficient consideration.

The statute of frauds which requires an agreement to pay the debt, &c. of another, to be in writing, was not intended to make good, agreements, though in writing, which would not be good at the common law, a consideration therefore is necessary to their validity.

And to support an agreement of this kind under the statute, a good consideration must not only exist, but it must appear in the agreement itself, and cannot be supplied by parol.

An agent may so contract as to bind himself personally; and in this case the payees of the note might, with a knowledge that G was the agent of the company, when they sold the merchandise in question, have refused to give them credit for it, and elected to deliver it on the individual credit of G; and if he had, under such circumstances, agreed to bind himself personally, it would have been an agreement for a sufficient consideration.

In an action upon a promissory note, by the payee, or by a holder to whom it is endorsed after it becomes due, it is always competent to the defendant to prove, either a want or a failure of consideration, the holder in such a case standing in the place of the payee, and being subject to all the equity of the maker, and parol evidence is admissible for this purpose.

If the fact had been that G was a stockholder of the company, his individual agreement to pay a debt of theirs would be void for the want of consideration; because his liability, as a member, would be a liability only in his corporate capacity, and binding only to the extent of his corporate funds.

Whether the credit on the sale of the merchandise was originally given by the payees of the note to the company, or to G individually, and whether the note was passed on account of that transaction or not, were Held to be questions of fact for the jury, to be decided upon all the evidence.  

COUNSEL:
Meredith, for the Appellant, contended, 1. That the appellee was personally liable upon the face of the note. 2. That the parol proof was inadmissible. 3. That upon the whole evidence in the cause, the appellee was personally responsible.

1. On the legal construction of the note itself, the appellee is personally responsible. The words "I promise to pay," import an individual engagement. March vs. Ward, Peake's N. P. 130. Clark vs Blackstock, Holt's N. P. 474. Hall vs. Smith, 1 Barn. & Cres. 407, (8 Serg. & Lowb. 112.) This absolute individual promise is not affected by the addition to the signature; and although the appellee was agent or president of the company, he might make himself personally liable. Appleton vs. Binks, 5 East, 148. Taft vs. Brewster, 9 Johns. Rep. 334. Duvall vs. Craig, 2 Wheat. 46. These were cases of sealed instruments, but their construction is the same as parol agreements. 2 Gall.  [**5]  Rep. 461. 1 Ryan & Moody's Rep. 229. Thomas vs. Bishop, 2 Stra. 955. Burrel vs. Jones, 3 Barn. & Ald. 47, (5 Serg. & Lowb. 223.) Thatcher vs. Dinsmore, 5 Mass. Rep. 299. Forster vs. Fuller, 6 Mass. Rep. 58. Chitty on Bills, 36, (7th Ed. 1821, note 1.)

2. The parol proof was inadmissible. 3 Starkie's Evid. 995, for the general rule. It was inadmissible to show the character in which the party contracted, to be different from that expressed in the written instrument. Frontin vs. Small, 2 Ld. Raym. 1418. S. C. 1 Salk. 96. Wilkes vs. Pack, 2 East, 142. Preston vs. Merceau, 2 W. Blk. 1249. Meres vs. Ansell, 3 Wils. 275. So it is inadmissible to show the extent or legal operation of a writing, or to control it. Carter vs. Bellamy, Kirby's Rep. 291. The rule is as applicable to bills and notes as to other written instruments. Free vs. Hawkins, 1 Moore, 535. 2 Stark. Evid. 279. Kaimes vs. Knightly, Skin. 54. Leadbitter vs. Farrow, 5 Maule & Selw. 347. Dukes vs. Dow, Chitty on Bills, 62, (note.) Thomas vs. Bishop, 2 Stra. 955 Siffkin vs. Walker, 2 Campb. 308. Murray vs. Somerville, Ib. 99. Hoare vs. Graham, 3 Campb. 57. Moller vs. Living 4 Taunt. 102. Campbell vs. Hodgson, 1 Gow, 74. Rawson [**6]  vs. Walker, 1 Stark. N. P. Rep. 361.

3. If the instrument imports personal liability, knowledge of the agency makes no difference. Leadbitter vs. Farrow, 5 Maule & Selw. 345. Mayhew vs. Prince, 11 Mass. Rep. 54. Paterson vs. Gandasequi, 15 East, 67.

4. The corporation is not liable. Act of Ass. 1815. ch. 140, s. 1. If an agent undertake to contract for an individual or corporation, and contract in a manner that is not legally binding on the principal, he is personally responsible. Mott vs. Hicks, 1 Cowen, 536. Mayhew vs. Prince, 11 Mass. Rep. 55. Taft vs. Brewster, 9 Johns. Rep. 334. So if he act without authority, or exceed his authority. Harrison vs. Jackson, 7 T. R. 206. Dusenbury vs. Ellis, 3 Johns. Cas. 70. White vs. Skinner, 13 Johns. Rep. 307. Randall vs. Vanvichten, 19 Johns. Rep. 60. Tippets vs. Walker, 4 Mass. Rep. 595. Paley on Agency, 303. 2 Liv. on Agency, 355. Leadbitter vs. Farrow, 5 Maule & Selw. 345.

Raymond, for the Appellee, cited 1 Com. Cont. 10, and Rathbon vs. Budlong, 15 Johns. Rep. 1.

Meredith, in reply, cited Castling vs. Aubert, 2 East, 325. Rob. on Frauds, 229. Stephens vs. Squire, 5 Mod. 205. Paterson vs. Gandasequi, 15 East, 66. Patapsco [**7]  Insurance Company vs. Smith, 6 Harr. & Johns. 166; and Leonard v. Vredenburgh, 8 Johns. Rep. 29.  

JUDGES:
The cause was argued, upon the plaintiff's bills of exceptions, before BUCHANAN, Ch. J. and EARLE, and DORSEY, J.  

OPINIONBY:
BUCHANAN 

OPINION:

 [*413]  BUCHANAN, Ch. J. delivered the opinion of the Court. This case comes up on two bills of exceptions. The first count in the declaration is on a promissory note, given by the appellee to Bicknell and Boies, and endorsed by them to the appellant, with other counts for money lent, &c. money had and received, and an insimul computassent.
The appellant at the trial produced and proved the due execution and endorsement of the note on which the action is founded, and that it was endorsed to him by Bicknell and Boies, after it became due, and there rested his case.
The appellant then offered evidence to prove, that before, at the time, and after the making of the promissory note, he was the president of the Patapsco Manufacturing Company; that on the eleventh day of February 1819, (the day on which the note purports to bear date,) Bicknell and Boies sold and delivered a quantity of goods to the said company, on a credit [**8]  of six months, amounting to $ 661 50, (the exact amount of the note,) and sent them with a bill of parcels, headed--"The Patapsco Manufacturing Company, Edward Gray Agent, bought of Bicknell and Boies." That a few days afterwards he sent to Bicknell and Boies the note in question; that when the goods were sold, they knew he was the president of that company; that at the time of making the note, the company was in good credit, and able to buy goods on their own credit, and that he was not in good credit; and also further offered in 

 [*414]  evidence, the charter of incorporation, and bye-laws of the company, (which bye-laws are not in the record.) The whole of which evidence was objected to by the counsel for the appellant, as tending to vary a written contract; but the court being divided in opinion, the objection was not sustained, and the evidence was suffered to go to the jury; which forms the subject of the first bill of exceptions.
The counsel for the appellant, then prayed the court to instruct the jury, that the appellant was entitled to recover; but the court being again divided, the instruction prayed for was not given; which forms the subject of [**9]  the second bill of exceptions.
These bills of exceptions involve a twofold inquiry--1st. Whether the evidence offered on the part of the appellee was admissible for any purpose? And 2d. Whether, being admitted, the court ought to have instructed the jury, under the circumstances of the case, that the appellant was entitled to recover? which will be briefly examined.
The note, in the body of it, purports to be the individual note of the appellee. The promissory part of it is in these words--"Six months after date I promise to pay to the order of Bicknell and Boies, six hundred and sixty-one dollars and fifty cents, for value received." And it is signed by the appellee in his own name, with the addition of the words "President Patapsco Manufacturing Company."
There is no doubt an agent may so contract, as to render himself personally responsible, but he may also so deal as to guard himself against liability; and if in this case the note were to be considered as not creating a personal responsibility, but as imposing the whole liability upon the Patapsco Manufacturing Company, it would follow, that the action could not be sustained. But it is asserted to be the [**10]  personal undertaking of the appellee, as apparent upon the face of it, and not subject to be explained or varied by extrinsic evidence, so as in any manner to change its character, or divert the legal operation of it from the maker to his principal. Considered in that aspect, and treating it as the individual note of the appellee, (the ground on which the appellant seeks to place it,) there could be no 

 [*415]  question of his right to recover, if the case rested solely on that ground.
But it is essential to the validity of every parol contract or agreement, whether verbal or written, that it be founded upon a sufficient consideration, otherwise it is considered in law as nudum pactum, and cannot be enforced.
And this rule applies as well to a promissory note in the hands of the payee, or endorsee claiming by endorsement after it became due, as to any other simple contract.
And although a promissory note, which purports to have been made for value received, carries upon its face prima facie evidence of consideration; yet in a suit by the payee, or holder, to whom it was endorsed after it became due, it is always competent to the defendant to prove either a want or a failure [**11]  of consideration, the endorsee in such case standing in the predicament of the payee, and holding it subject to all the equity of the maker.
Testimony, therefore, on the part of the appellee, was clearly admissible for the purpose of showing on what account the note in question was given, in order to prove the absence of a sufficient consideration; or what, in such a case, would become of the well known principle, that all parol contracts or agreements without consideration are void.
There are indeed exceptions to the rule in favour of holders of promissory notes and bills of exchange, which have come into their hands in a due course of negotiation, arising out of the peculiar character of these instruments, but which do not apply to this case, the appellant claiming by endorsement after the note became due. And if it was given for a previously existing debt of the Patapsco Manufacturing Company, the establishment of that fact would be a full defence to the action, in the absence of any other consideration, for the purpose of proving which, the evidence offered was properly permitted to go to the jury.
Bicknell and Boies might, with a perfect knowledge that the appellee [**12]  was acting as the president of the Patapsco Manufacturing Company at the time the goods were sold, have refused to give credit to that company, and elected to deliver them on the individual credit of the appellee alone; and it was quite 

 [*416]  competent to the appellee to have substituted his own responsibility for that of the company; and if that was the character of the transaction, and the note was given at the time, or being so liable, the appellee afterwards passed his note on that account, it was a good and sufficient consideration.
But if the credit was originally given to the company, and not to the appellee, by which it became the immediate debt of the company, and the note was afterwards given in consideration of that debt, without any new or superadded consideration, moving between Bicknell and Boies, and the appellee, then it was a promise to pay the debt of another, and void for want of a sufficient consideration, the statute of frauds requiring an agreement to answer for the debt, &c. of another, to be in writing; not intending, or having the effect to make any agreements good, though in writing, which at the common law would be bad, but leaving them [**13]  to be judged of by the common law, as all other agreements merely in writing are. And there is not only no evidence in the record of any consideration moving to the appellee, but none de hors the note, if offered, could properly have been received, the consideration forming a constituent part of every agreement, and the statute requiring the agreement to be in writing, meaning not a part only, but the whole of the agreement.
The case of Wain and another vs. Warlters, 5 East, 10, which was elaborately discussed by the judges, is full to this effect. It was an action brought upon an instrument of writing in these words: "Messrs. Wain & Co. I will engage to pay you by half past four this day, fifty-six pounds and expenses on bill, that amount on Hall." Signed, John Warlters. The declaration avers, that it was given in consideration of forbearance to sue one Gore and Hall for that amount due him on a bill of exchange; and at the trial the plaintiff offered parol evidence to prove the consideration of forbearance. But it was held, that for the want of the consideration appearing on the face of the instrument, it stood as a simple agreement to pay the debt [**14]  of another without consideration, and was therefore nudum pactum, and void, and the plaintiff was nonsuited; and upon a motion for a rule to set aside the nonsuit, it was determined 

 [*417]  that the consideration ought to have been stated in the agreement, and could not be supplied by parol.
The suggestion, that if this note was in fact given for a debt due by the Patapsco Manufacturing Company, the appellee being the president of that company, it was given for his own debt, and therefore good, cannot be sustained.
The appellee, if liable at all for that debt, as president of that institution, was liable, not in his natural and individual, but in his corporate capacity alone, and that only to the extent of his corporate funds. But the charter of incorporation does not require that the president shall be a stockholder; and there is no evidence that the appellee was a stockholder at the time of this transaction. If, therefore, it was originally the debt of that institution, he was not answerable for that debt, or any part of it, in any capacity, from any thing appearing in this record.
In this case, however, whether the credit was originally given to the Patapsco  [**15]   Manufacturing Company. or to the appellee individually, and whether the note was in truth passed on account of that transaction or not, were questions of fact, proper to be decided by the jury, upon the whole of the evidence in the cause, and not by the court. The court, therefore, did right in not instructing the jury that the appellant was entitled to recover.
JUDGMENT AFFIRMED.  

18 of 33 DOCUMENTS 

DRAKE vs. HUDSON & FRANCISCUS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

7 H. & J. 399; 1826 Md. LEXIS 48 

June, 1826, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court. Assumpsit for money paid, laid out and expended; money lent and advanced, and on an insimul computassent. The defendants, (the appellees,) pleaded non assumpsit, and issue was joined. At the trial the plaintiff, (the appellant,) offered evidence, that the defendants, together with a certain Carston Newhouse, who was then alive, but not alive at the institution of this suit, were owners of a vessel called the Schooner Superior; that in the early part of the year 1816, the said vessel was sent with a cargo by the said owners to the Havana, consigned to the plaintiff; and that in the latter part of the month of March 1816, it was a matter of general notoriety at Havana, that the consignees of all vessels which had come into the port subsequently to the 1st of March 1816, were required by a municipal regulation, or order of the intendant of that port, to pay double tonnage-duty on all vessels which had so arrived after said 1st day of March; that is to say, an additional duty of five and a half rials per ton, over and above the regular duty of the same amount, which had been before the usual and accustomed duty. That this additional duty had actually [**2]  been paid in several instances by the witness, who was offered to prove the general notoriety of the existence of the duty, to the consignees, with whom he settled his accounts, and under whose care were the vessels, of which he was supercargo. The plaintiff further read in evidence the commission which issued out of Baltimore county court on the 28th of February 1822, to certain persons of the city of Havana, in the Island of Cuba, for the purpose of taking testimony, with the interrogatories and depositions returned with the commission, viz. The deposition of Jose Manuel de Lorio, merchant in the city of Havana, who deposed, in answer to the second and third questions, that "he recollects that the American schooner Superior, (the vessel named above,) captain Barry, arrived here in the port of Havana on the 3d of March 1816; that the house of James Drake (the plaintiff,) paid the tonnage-duty on said schooner at the rate of five and a half rials per ton, making, on 289 tons, $ 198 and five and half rials. These duties were paid at the custom-house on the 17th of April of said year. Answer to the fourth question--He knows of an order of the intendant of this city, dated 1st of March [**3]  1816, but not communicated to the public at that time, in virtue of which all vessels that had come into this port subsequent to the 1st of March 1816, must pay double-tonnage duty; that is to say, eleven rials per ton, instead of five and a half rials. He knows that all the consignees of vessels, entered subsequent to the 1st of March 1816, were obliged to pay the arrear; and in consequence, James Drake was called upon to pay, and did pay at the custom-house, on the 14th of November 1816, the additional duty of five and a half rials per ton on the said schooner Superior, making the sum of $ 198, five and a half rials. He also knows that this sum is still due to James Drake by the owners of the said schooner." The deposition of John B. Fronty, clerk in the house of Messrs. Drake & Mitchell in the city of Havana, deposed, in answer to the second question, that "he recollects that a certain tonnage-duty was paid by the house of James Drake, on account of the American schooner Superior, which arrived in this port on the 3d of March 1816, amounting to $ 198, and five and a half rials. This duty was paid on the 17th of April 1816, at the custom-house, at the rate of five and a half rials [**4]  per ton, the schooner measuring, as per register, 298 tons. Answer to the third and fourth questions.--He knows that the house of James Drake was called upon to pay an additional tonnage-duty for said vessel of 5 1/2 rials per ton, in virtue of a new order of the intendant, not made known at the time the first payment was made; and that although the vessel's accounts were closed and sent, the house had to pay on the 14th of November 1816, $ 198 and five and a half rials, at the custom-house for this additional duty. That the order of the intendant comprehended all foreign vessels which had entered this port subsequent to the 1st of March 1816. He knows that this last payment remains still due to the house of James Drake, by the owners of the said schooner." Upon this evidence the defendants prayed the court to direct the jury, that inasmuch as the above deposition of Jose Manuel de Lorio states, that the "order of the intendant" of Havana, which imposed the additional duty, "was dated the 1st of March 1816," the jury were bound to infer that the said order was in writing, as originally issued by the intendant, and that, consequently, no parol evidence could be admitted to prove the [**5]  existence of such an order, or the payment by the plaintiff, for the use of the defendants, of any duty imposed by such order; and that the jury must, therefore, find their verdict for the defendants. This direction the Court, [Archer, Ch. J. and Hanson, A. J.] gave to the jury. The plaintiff excepted; and the verdict and judgment being against him, he appealed to this court.  

DISPOSITION:
JUDGMENT REVERSED, AND PROCEDENDO AWARDED.  

HEADNOTES:

D & F, owners of the schooner Superior, sent her to Havana, consigned to P, where she arrived on the 3d March 1816. P, having discharged his duties as consignee, on the 17th of April, paid the then customary duties at the custom house at Havana, and he made up his accounts accordingly, and transmitted them to D & F, on the vessel's return. It appeared by parol evidence, that the intendant of Havana, by an order stated to be dated the 1st of March 1816, but not made public till some time after, directed that vessels entering that port, after the said 1st of March, should pay an additional duty, and that the consignees there had been compelled to pay this duty; and that among them P, as the consignee of the Superior, was called on to pay it in the November following, when it was paid by D's house. In an action of assumpsit by P, against D & F, to recover the amount so paid--Held, that he was individually entitled to recover, although the payment was made by his house. That a consignment transfers not only the power, but is a request to the consignee to pay all charges to which the vessel may be liable, at her port of delivery, and for such charges the consignee, if he acts in that character, becomes personally liable.

Held also, that though it was clear from the evidence, that the order of the intendant at Havana, under which the additional duty was paid, was in writing, still its contents might be proved by parol, and that it was not necessary to prove it by an authentic or sworn copy--the rule which requires this last proof, being applicable only to such foreign laws, or public edicts, of which a regular record is necessarily presumed to have been kept.

Held also, that although the contents of the order could not legally be proved by parol, yet that payments under the order might be so proved, as such payments established the fact of the amount of duties payable at Havana, and the usage or custom to pay them; and a usage or custom may be proved by parol, whether it originates in a public written law, or not.  

COUNSEL:
R. B. Magruder, and Krebs, for the Appellant, contended, 1. That whether the order of the Intendant of Havana, mentioned in the bill of exceptions, was in writing or not, was a question of fact for the jury; and that, therefore, the absolute direction of the court was erroneous. 2. That admitting the jury were bound to infer that the order was in writing, still parol evidence was admissible, under the circumstances of the case, to prove its existence, and, therefore, the absolute direction was erroneous. 3. That even if the order was in writing, still as it was not proved to have been in writing as a public edict, but may have been the result of instructions from the governor of Cuba, it might have been proved by parol. 4. That whether the order was a public [**6]  edict in writing, or not, the appellant might legally offer parol evidence of any payments he might have been obliged to make for the use of the appellees, on account of any duty imposed by such order, or which by any usage of trade, or regulation at Havana, the appellant, as consignee, was compelled to make.

On the first point, they cited Wilson vs. Dickson, 2 Barn. & Alder. 10. Marine Insurance Company of Alexandria vs. Young, 5 Cranch, 187. Jackson vs. Schoonmaker, 2 Johns. Rep. 234.

On the second point--Church vs. Hubbart, 2 Cranch, 226, 237.

On the third point--Church vs. Hubbart, 2 Cranch, 226. Livingston vs. Maryland Insurance Company, 6 Cranch, 274.

On the fourth point--Livingston vs. Maryland Insurance Company, 7 Cranch, 512. Smith vs. Elder, 3 Johns. Rep. 105. Grant vs. M'Lachlin, 4 Johns. Rep. 34. Van Omeron vs. Dowick, 2 Campb. 42.

Frick, for the Appellees. The appellant contends, that having paid money for the appellees under a compulsory order of the Intendant of the Havana, which order is said, by one of the witnesses, to be dated the 1st of March, it does not necessarily follow that the said order was in writing, and therefore the court below [**7]  should have submitted the question to the jury. This position confounds the admissibility of evidence with the effect. The latter is for the jury, the former for the court. If there was any room to doubt the nature of this order, the absolute direction of the court was erroneous. But the court say that this order, from the very terms used, was a written order, and whether they erred or not in so saying, is the inquiry? And they contend also, that admitting the order to have been in writing, yet parol proof of its contents was admissible, unless at least it was proved to be in writing, as a public edict. This is contrary to the elementary principle of evidence, that requires the best the nature of the case admits; for no evidence can be given which, in its nature, supposes still greater evidence behind in the party's power. 1 Phill. Evid. 167. Here an order is shown general in its nature, being a maritime or revenue ordinance, and this order is proved to be written. How then does the case in Livingston vs. Maryland Insurance Company, 6 Cranch, 274, apply? If they be not proved to be written, then parol proof may be adduced. It denotes the distinction between the written and unwritten [**8]  law of a foreign country, and it is only the latter which may be proved by parol. Kenny vs. Van Horne, 1 Johns. Rep. 394. Hulle vs. Heightman, 4 Esp. 79. Condy's Marsh. 706, (note.) Miller vs. Heinrick, 4 Campb. 155. But this is said not to be an edict. What then is it? See the word in Johnson; it is there said to be "a law promulgated in writing," &c. And Ch. J. Marshall treats all foreign laws as edicts. Church vs. Hubbart, 2 Cranch, 187. As to the giving parol evidence of the payment of money under such an order admitted to be in writing, which is not produced, no legal apology offered for the nonproduction, no opportunity afforded to the appellee to test the legality, the propriety, or the vis major of such order, not even its genuineness, no authority has or can be produced to support such a position. If the money was paid under a usage of trade, as is assumed in the appellant's fourth point, then the position has some weight. But the term order, forbids the notion or idea of a usage in this case--"The true test of a commercial usage, is its having existed long enough to have become generally known, and to warrant a presumption that contracts were made in reference to it." Renner [**9]  vs. Bank of Columbia, 9 Wheaton, 591. That it was a regulation at Havana is admitted; and indeed one of the witnesses speaks of it as such. But foreign commercial regulations cannot be proved by parol. Condy's Marshall, 706, (note a,) and the reference. Besides, the relation of shipper and consignee had ceased between the parties--the vessel's accounts had been closed and sent when this payment was made. From a voluntary payment for a third person no assumpsit can arise. But, says the appellant, it was a compulsory payment. And how? Under the order of the intendant? And here the first point again recurs--Was this order in writing or not? See Johnson's Dict. The meaning of DATE, is--1. The time when a letter is written, &c. 2. The time when any event has happened; and TO DATE, is to note the time when any thing is written or done. Therefore, any thing dated, hath the time noted when it was written or done. How noted? Thus: quo tempore scriptum est. For this see Ainsworth, under the word date. To make it plain, he asks--What date doth it bear? And renders it in Latin; quo tempore scriptum est. Then in the same lexicon refer to the Latin datus, and it is said to mean given, granted, DATED [**10]  as a letter; and for illustration quotes Cicero & Plautus, datum pridie. The surest guide is etymology, where the import of words hath not been abused or perverted by modern convenience; as is not the case in this instance. See Minshew's Lexieon, (A. D. 1625,) which contains also the exposition of the terms of the English law: "a date" of writing, (as if it could be coupled with nothing else,) or edition of a writ--a lat. DATUM; i. e. given out, quia datur SCRIPTO autoritas, et DIES mensis et anni datur, ac etiam SCRIPTUM hominum MANIBUS, datur et traditur, &c. &c. See the same, supported by analogous reference to other languages ancient & modern, loc. cit. Here the word has a technical meaning, "the edition of a writ," (it is not doubted that means a writing,) and that induces the further inquiry, whether before or since the days of Minshew, lawyers have ever referred to any thing dated, that did not necessarily assume it a writing. Vide the case of Pugh vs. Duke of Leeds, Cowper, 434. The question there hath no reference to this; but the words are in point, and furnish the illustration desired. The matter concerned a lease, and the difference between a datu & a die datus, i. e. of [**11]  the lease. Why not "from the leasing or the day of the leasing? Because it was written, and was dated. Suppose it a verbal lease, is it not a pleonasm to say" the day of the date "of the lease." It is a pleonasm if the subject matter be not written, since, if it means only the time when done, "the day" is enough. In law a will may be verbal, so a lease, an agreement, &c. may be verbal; and we speak of the day when the will, the lease, &c. was made. But if we speak of a will, of a lease, &c. that was or is dated, what lawyer ever resisted the conclusion that it was first written? Blackstone says, "lastly comes the conclusion, (of a deed) which mentions the date of the deed, or the time of its being given or executed." This is the uniform application, the most general and reputable use of the word; and if any divided use can be established, yet the canons of criticism fortify the positions taken. Consult the analogy and etymology of the language, and if neither perspicuity nor analogy support it, (which it is maintained they do,) the meaning, most conformable to ancient usage, must be taken and preferred. Campbell's Philo. Rhetoric. If the latter then have any weight, and the interesting [**12]  Diversions of Purley mny be adduced as authority, see the II vol. p. 22. "A date, is merely the participle datum, which was written by the Romans at the bottom of their epistles." Yet, say that standing alone the word is equivocal, the rule then is that it must depend upon the context or subject matter. It is an order that is dated; now, an order in itself may be either verbal or written, and when standing by itself it is always supposed to be verbal; and if verbal, is said to be issued, or given, &c. as by an order of the governor, issued on the 1st of March. But couple this order, command, edict, or whatever it might be termed, with a date, (say that it is dated,) and can a philologist withhold the inference that it is written. But go to the whole subject matter. How could it have been a verbal order of the 1st of March, if not known on that day, but afterwards promulgated? For the witness says, the order was not known till after the 17th of April. Here is an order to pay additional duties, not customary--in its nature a general order, not applicable to the customs alone at Havana, but to all the ports of the island. Would the governor be most likely to resort to a circular, or would [**13]  he send a verbal messenger around the whole island? When was such a preposterous thing ever done in like case?

Mitchell, on the same side, cited D'Arcy vs. Lyle, 5 Binny's Rep. 441, cited in 2 Liv. on Agency, 23, to prove that a consignee is not a general but a special agent; and that if an agent pay an illegal or exorbitant demand, it cannot be recovered. The agency of the plaintiff had terminated, and he could not recover in this form of action. It is proved that the money was not advanced by the plaintiff, but by the firm of Drake and Mitchell. The suit, therefore, should have been in their names. To show that foreign laws are presumed to be promulgated in the same manner as our own laws are, he cited Banoorgee vs. Hovey, 5 Mass. Rep. 41. Church vs. Hubbart, 2 Cranch, 226, (Martin's Argument.) 1 Phill. Evid. 301, (notes.) Smith vs. Elder, 3 Johns. Rep. 113. Exall vs. Partride, 8 T. R. 310; and Spurrier vs. Elderton, 5 Esp. Rep. 2.

R. B. Magruder, in reply.  

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

OPINIONBY:
DORSEY 

OPINION:

 [*407]  DORSEY, J. delivered the opinion of the Court. The appellees, the owners of the schooner Superior [**14]  , despatched her, with a cargo, to the Havana, where she arrived on the third day of March 1816, consigned to the appellant, who having discharged his duties as consignee, on the 17th of April paid at the custom-house a duty of five and a half rials per ton, (the amount always payable, anterior to the first of March 1816,) made up his accounts accordingly; which, on the return of the schooner, were transmitted to the consignors at Baltimore. It is in proof, by competent witnesses, that by an order of the intendant of Havana dated said first day of March, but not made public until sometime after, all vessels entering that port were required to pay a duty of eleven rials per ton, instead of the amount heretofore demandable. That the consignees of all vessels, which arrived after the said first day of March, had been obliged to pay the said increased impost on tonnage, and that supercargoes settled with them accordingly. That in November 1816, the appellant was called on, and had to pay the additional duty, amounting to the sum of $ 198 and five and a half rials. For the recovery of which sum the present action was instituted.
This claim is objected to on two grounds: First [**15]  . That the appellant paid this money as a mere volunteer, and cannot become the creditor of the appellees without their consent. This objection is entitled to no consideration. The very act of consignment, transfers not only the power, but is in fact a request to the consignee to pay all charges to which the vessel may be necessarily subjected at her port of delivery. For the payment thereof, the consignee pledges his personal responsibility; to him, and not to the consignors, is the credit given at the custom-house.

 [*408]  The second objection is, that "no parol evidence can be offered of the order of the first of March 1816, or of any payment made under the same;" and of this opinion were the court below, and so instructed the jury.
That this order was in writing, we think most manifest from the proof in the cause; but that it is of such a character, that its contents can only be proved by an authentic or sworn copy, we cannot admit. This strictness, in proving the laws of a foreign country, is only applicable to laws or public edicts, of which a regular record is necessarily presumed to have been kept. The order of the first of March is not of this description--It is a [**16]  mere instruction or rule prescribed by the intendant of Havana, for regulating the duty of the custom-house officers, and may not be any where recorded. That orders or instructions of this kind, given in a foreign country, may be proved by parol, vide Livingston & Gilchrist, vs. The Maryland Insurance Company, 6 Cranch 274, and 1 Phill. Ev. 301, (note a.) But even admit, that the order spoken of in this case were to be considered as a law or public edict, the contents of which it is inadmissible to prove by parol, yet it appears to this court, that the testimony offered by the plaintiff, (that under an order of the intendant of Havana the custom-house officers did always demand and receive this double tonnage duty upon all foreign vessels arriving after the first of March 1816,) was admissible before the jury, without any other proof of the order itself. It establishes the fact, or call it if you please an usage or custom, as to the amount of duties payable there; which usage or custom may be proved by parol, whether arising under a public written law or not. See the case of Livingston and Gilchrist vs. The Maryland Insurance Company, 7 Cranch 506 and 1 [**17]  Phil. Ev. 301, (note a.) The great inconvenience and injustice, which might flow from the sanction of a different principle, is most obvious. We therefore dissent from the opinion given by the court below, and reverse their judgment.
JUDGMENT REVERSED, AND PROCEDENDO AWARDED.  

19 of 33 DOCUMENTS 

BOHN vs. HEADLEY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

7 H. & J. 257; 1826 Md. LEXIS 35 

June, 1826, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court. This was an action of trover for slaves. The defendant, (now appellant,) pleaded not guilty, and issue was joined.

1. At the trial the case was admitted to be this--One Thomas Tucker, of Anne-Arundel county, being the owner of, and having in his possession, the negroes in the following deed mentioned, on the 7th of September 1796 executed the said deed, whereby he did give, grant, and make over unto his three daughters, Mary Tudley Tucker, Rebecca Fairbain Tucker, and Harriet Tucker, three negro slaves, as follows: Unto his daughter M. T. Tucker his negro boy Ben, unto his daughter R. F. Tucker his negro boy Charles, and unto his daughter Harriet Tucker his negro girl Dorcas, unto his said daughters, and their heirs forever; to have and receive the said negroes at his death, and not before, revoking all further claim unto the said negroes, further than to have the use and labour of them during his natural life. The deed was acknowledged on the day of its date before a justice of the peace of Anne-Arundel county, and recorded on the 8th of September 1796, among the records of that county, where Tucker then resided. Negro Dorcas, in the said [**2]  deed mentioned, is the negro woman named in the declaration, and the other negroes mentioned in the declaration are the children of Dorcas. At the time of making the said bill of sale, Dorcas was an infant of the age of seven years, and Harriet, the plaintiff, a child of Tucker, was at that time an infant of the age of ten years. Tucker continued to keep and hold in his possession Dorcas, using and employing her as his property, according to the provisions of the deed, until he sold her as herein set forth. On the 18th of December 1810, Tucker brought Dorcas with the boy George, her child, then an infant, to Baltimore, and sold and delivered her by the name of Darkee, and also the said George, to the defendant, as slaves for life to him, for the consideration of $ 280 then paid to him by the defendant; and executed to him, in pursuance thereof, a bill of sale, which was acknowledged before a justice of the peace of Baltimore county on the day of its date, (the 18th of December 1810,) and recorded on the 9th of January 1811 among the records of that county. The defendant has ever since continued to hold Dorcas and George as his slaves, and had them in possession, together with the other [**3]  negroes in the declaration mentioned, all of whom are the children of Dorcas, and who, together with George, were all born during the life of Tucker, and all, except George, since the said sale to the defendant. The plaintiff continued to live with her father, the said Tucker, until he removed from this state into Virginia in the year 1814, where she married one George Headley. That Tucker died in December 1818, and George Headley in November 1819. The defendant then prayed the direction of the court to the jury, that the matters so admitted were evidence of fraud in the making the deed aforesaid from Tucker to the plaintiff; that the same deed was void, and that the plaintiff was not entitled to recover. This direction the Court, [Archer, Ch. J.] refused to give; but instructed the jury that the plaintiff was entitled to recover. The following is the opinion he delivered to the jury. The determination of the question as to the validity of the conveyance by Thomas Tucker to Harriet Tucker, dated the 7th of September 1796, depends upon the construction of the different statutes relative to fraudulent conveyances. The common law, it is apprehended, cannot reach this case, the gift [**4]  to Harriet being precedent to the acquisition of any right by the defendant. Bac. Ab. 307. It has indeed, been said, that the rules of the common law are so strong against fraud that they would reach every case intended to be remedied by the statutes 13 and 27 Eliz. Kadgoan vs. Kennett, Cowper, 434. But this remark, it is apprehended, must be confined to those cases where the debt, or right intended to be avoided, had its inception before the commission of the fraudulent act by which it was intended to deceive the creditor, or defeat the pre-existing right. And indeed, independent of the circumstance of the right of the defendant having accrued long subsequent to the voluntary conveyance to the plaintiff, which could prevent it from being the subject of animadversion at common law, the conveyance appears not to be accompanied by any of those sure and certain indicia of fraud which would render it void. It does not appear, for example, that there has been a successive transfer of all the donor's property. There appears to have been no secrecy about the transaction; it has been executed and acknowledged and recorded in the usual manner. There seems to be no unusual clauses in it, which [**5]  would constitute marks of fraud and collusion; no artful and forced dress and appearance given by the parties to the instrument, which would create a suspicion that they were intended to conceal some hidden and fraudulent intention. It is true the owner continued in possession after the conveyance, but it was in virtue of a positive stipulation, inserted in the body of the instrument; and if there had been no such convention between the parties, the mere possession by the donor would have been justified since the passage of the act of 1763, the conveyance having been acknowledged and recorded. If this instrument be void then against a subsequent purchaser or creditor, it must be in virtue of the statutes of Elizabeth, above referred to; for there seems to be no principle of common law which could contaminate it. These statutes, being made for the purpose of avoiding fraudulent transfers of property, such a construction has ever been put upon them by courts of justice, as would most effectually carry into execution the intentions of the legislature in suppression of the frauds intended to be guarded against, under whatever plausible devices they might be covered. They have, therefore,  [**6]  had a liberal construction in suppression of fraud; their spirit and purview have been largely considered, and such a construction has been given them as has made them highly beneficent to the community.

The statute 13th Eliz. extends to all creditors, and to all others who have any cause of action or suit, or any penalty or forfeiture, either to the state or the citizen, and renders invalid all voluntary conveyances against prior, as well as subsequent creditors, with the exception of family settlements and provisions; and even these are void if accompanied with the above mentioned particular indicia of fraud. In the absence of these indications, they stand on the same ground with deeds made for a valuable consideration. In cases of family settlements and provisions, conveyances have a preference over debts originating in subsequent contracts; because the consideration, upon which it is founded, proceeds from a most virtuous motive, and it would be inconsistent with every moral principle to give a different determination. The defendant has been supposed, in argument, to stand in the light of a purchaser, and not of a creditor, and that therefore the stat. 13 Eliz. could by no [**7]  probability reach this case, it applying exclusively to creditors. But in one view of the case he might possibly be considered a creditor, for if he paid for the property on a consideration which failed entirely, he might have his action against the vendor for the sum paid. To make myself better understood, if the first conveyance overreached the subsequent sale, the consideration of the purchase had failed, and he would be a creditor subsequent to the voluntary conveyance, and, but for the consideration, might be considered within the reach of the statute. But if in this view of the case, the defendant can be considered as a creditor, his claim, originating subsequently to the voluntary conveyance, cannot overreach it, as it is founded on considerations of blood and natural affection. A man not involved in debt may legally make provision for his children.

In the case of Ld. Townsend vs. Wyndham, 2 Ves. 11, Lord Hardwicke is reported to have said, "that if there is a voluntary conveyance by one not indebted, if that voluntary conveyance was for a child, and no particular evidence or badge of fraud to deceive or defraud subsequent creditors, it appears, that it will [**8]  be good, otherwise not; but it will stand, though afterwards he becomes indebted." It cannot be contended that any of the usual badges of fraud attended the original transaction, nor is there any evidence in the cause to induce the slightest belief that the original conveyance was made with the intent of contracting subsequent debts. The transfer cannot then be considered as coming within any of the provisions of 13th Elizabeth.

Let us next inquire whether, considering the defendant in the light of a purchaser, the conveyance to the plaintiff is embraced by any of the provisions of the 27th Eliz. ch. 4, against fraudulent conveyances? The object in the passage of this law was to protect purchasers from conveyances made with intent to defraud and deceive. Should this statute be considered as extending to conveyances of personal property, such has been the construction put upon it by repeated determinations of the courts, that it would seem to embrace the present case. Mr. Roberts, in his treatise on Fraudulent Conveyances, lays it down as a principle, that a subsequent purchaser may treat a prior voluntary conveyance as a nullity, although he had notice of the precedent conveyance.  [**9]  This principle may now, without any inquiry into the reasonableness of it, be considered undeniable, since the determination in the case of Doe on the demise of Otley vs. Manning, 9 East, 59. It has also been determined, that a voluntary gift, if followed, though at a long interval, by an attempt to convey, furnished presumptive evidence of an original intent to defraud; and that when the two acts are coupled, to wit, the voluntary conveyance and subsequent sale to a purchaser, this constituted evidence of an original fraudulent intent, and made the first conveyance void under the statute. If the language of the statute would at all have justified its extension to conveyances of merely personal property, there appears to be no reason why the courts should hesitate to protect, by it, subsequent purchasers of this species of property; for conveyances of personal property, in fraud of purchasers, are as numerous as conveyances of lands and tenements; and when the general diffusion of this kind of property over the whole mass of the community is considered, the assertion may be safely ventured, that transfers of it are both more important and more numerous. Personal property, it is true,  [**10]  is of a fluctuating and transitory character, but still, with some exceptions, it is capable of being traced and identified. But however just and reasonable in principle its extension might be, courts cannot give an interpretation contradicting the intention of the legislature, as manifested by the language they have used. The words of the statute are lands, tenements and hereditaments; now it is scarcely necessary to say that personal property, at least so far as regards the object of the present suit, cannot be included within either of these terms, their known and received legal signification excluding the idea. Perhaps a reason may be discovered for the use of these terms, from the great care formerly bestowed in the ascertainment of the rights, of what was considered, lasting and permanent, and from the low estimation in which personal chattels were held, being regarded as only a transient commodity, which might be protected in the hands of purchasers by the aid of the common law, without the necessity of legislative provision. From a full consideration of the subject, I am satisfied that neither the common law, nor the statutes, can be so construed as to avoid the conveyance [**11]  to the plaintiff.

A question has been raised, whether the plaintiff can sustain the present suit? By the statement agreed upon it appears, that the plaintiff in the year 1814 was married to George Headley, and that he died in the year 1819, before the institution of this suit. There does not appear to be any thing in the objection. If the wife survive, any action for a tort committed to her or her personal or real property, before marriage, or to her person or real estate during coverture, will survive to her. 1 Chitty's Pleading, 64. If this cause of action originated previous to the marriage, she is certainly properly in court. But the conversion, which is the injury complained of, is alleged in the declaration to have taken place subsequently to the death of her husband; if this be the fact, there is also an end of the objection, provided, after the death of her husband, the property remained to her, as the right of action occurred only from the time of the wrongful conversion. Property in the plaintiff is necessary to support this action. The husband, during his life, never reduced the property in contest into possession. He never exercised any acts of ownership over it, by [**12]  which his intention of making it his own was demonstrated. No property therefore vested in him. It was in fact a mere right of action, which he never deemed it necessary to enforce. After the coverture is determined by the death of the husband, the property and right of action certainly remains to the wife, and not to his representatives. The prayer is therefore overruled. The defendant excepted.

2. The defendant further prayed the court to instruct the jury, that the plaintiff was not entitled to recover in this action the children of Dorcas, born after the deed of gift, and during the life of Tucker, the grantor. And the Court, [Archer, Ch. J. and Hanson, A. J.] being of opinion that the children, born during the life of Tucker, belonged to him and his assignee, instructed the jury accordingly. The plaintiff excepted. Verdict and judgment for the plaintiff, and the defendant appealed to this court.  

DISPOSITION:
JUDGMENT REVERSED. Procedendo, on motion of the Appellee's Counsel, refused.  

HEADNOTES:

A deed of gift of personal property from a father, (who was not indebted at the time,) to his child, executed, acknowledged and recorded, according to law, conveying the property to the child, with a provision that the donor was to remain in its possession and use during life--Held, to be valid both at common law and under the statute of 13 Eliz.

Such a deed is not within the statute of 27th Eliz. that statute not relating to conveyances of personal, but of real property.

H, being entitled by deed, at her father's death, to certain slaves, the father sold them as slaves for life to B, who took possession, and used them as his own--Held, in an action of trover, brought at the father's death by H, against B, for the slaves, that there must be other evidence of a conversion of the slaves by B, to entitled H to recover.

After the date of the said deed H, who was then a single woman, married. The donor, her father, died during her coverture, and afterwards her husband died, without doing any thing to recover the possession of the slaves--Held, that the right to them survived to the wife.

The issue of slaves born during the existence of a tenancy for life, belong to the tenant for life, per Archer, J.  

COUNSEL:
Frick, for the Appellant, contended, that the deed of gift from Thomas Tucker to the appellee, was void. 1. Under the statutes of 13th and 27th Elizabeth. 2. At common law. If not, then 3. That it [**13]  was an instrument voidable on its face, and that Tucker, by his sale to the appellant, avoided it. 4. That at all events, the children of the negro woman in question, born during the lifetime of Tucker, were the property of the tenant for life. 5. That the parties to the action are misconceived.

1. The gift from Tucker to Headley is void by the statutes 13th and 27th Elizabeth. The case is of small import as regards the amount, but in principle important to the commercial interest, and to confidence and integrity in dealing. The question is simply, whether the bona fide purchaser of a chattel, which was previously the subject of a voluntary gift where the donor retained possession, is protected? Lord Mansfield has said that the 13th Eliz. was made for the benefit of creditors, and the 27th Eliz. for protection of purchasers. Now, the 13th Eliz. has relation to personal as well as real property; but, as it is said we are purchasers, we are excluded. The 27th Eliz. it is said, protects purchasers, but those only of lands, tenements, and hereditaments. These statutes, however, are always named and construed together. No case where one is referred to without calling in aid of the [**14]  other. Roberts' Fraud. Conv. 395. And here, although the distinction is taken, yet it is to show that all voluntary conveyances, though not void against creditors themselves, (without some distinct badge of fraud,) are always so against purchasers. The st. 13th Eliz. is said by English judges to be declaratory of the common law. Under this statute there is no doubt this gift was void as to creditors at the time and subsequent. Rob. 15, 16, &c. and Twyne's case, 3 Coke 80. Yet purchasers who, in the general construction of the statute are said to be more favoured, are excluded, because not expressly named in 13th Eliz. But there is a phrase in 13th Eliz. which it may be assumed was not idly inserted, and means something--the word "others" after creditors. It is nomen generalissimum; and it may be argued, that it includes purchasers; and any person who is aggrieved by gifts, conveyances, &c. which the statute denounces, may apply it to himself. It is in fact so applied. Jackson vs. Myers, 18 Johns. Rep. 425. Roberts, 15, (note d.) Taylor vs. Jones, 2 Atk. 601. And whether at the time, or subsequent, does not alter the case. Again--Admit that a purchaser is excluded from 13th Elizabeth,  [**15]  and as to him the gift was good in its inception--What consideration then passed from Tucker to Bohn? None. Would not then Bohn eo instanti become a creditor, and his claim, by relation back, overreach the gift? For what is a subsequent purchaser but a creditor, if the consideration of his purchase fails.

2. But this gift is also void at common law. It was said, that the common law could not reach this case, because the gift was precedent to the debt or right. That was the notion in Bacon's time. But Lord Mansfield says, in Kadogan vs. Kennett, 2 Cowp. 434, "the principles and rules of the common law, as now universally known and understood, are so strong against fraud in every shape, that the law would have attained every end without the statute;" that is, the law is the same without the statutes. Then if the statute does not distinguish whether the right be precedent or not, neither does common law. It is not denied that the statute 27th Elizabeth would extend to purchasers subsequent. Where do we get this construction? In the statute itself. How is it extended to 13th Eliz. where no such words subsequent, &c. are mentioned? From analogous construction, and under the principles [**16]  of the common law, which are so abhorrent of fraud, that they allow the principles of the one statute to be applied in the construction of the other. It is the common law that permits this construction. And will it be said that the common law furnishes one set of rules to try fraud under the statute, and another to try the same fraud at common law? There is no such doctrine. See the Newgate case, 3 Bac. Ab. 247, and Jackson vs. Myers, 18 Johns. 425, (note a.) We may then premise, that if purchasers are excluded from the benefit of 13th Eliz. yet the rules of construction, with regard to conveyances, gifts, &c. therein named, are general rules. There presumption of fraud was always derived from an attempt to sell or convey to a purchaser, even after a long interval. Roberts 33, 34, &c. This is said to be a gift. Now gifts are not in favour with the English law--nor with our own. And a true and proper gift at common law must always be accompanied with possession, otherwise the donor may retract it. Spratley vs. Wilson, 3 Serg. &. Lowb. 8. Jenk. 109. 2 Blak. Com. 441; and Pearson vs. Pearson, 7 Johns. Rep. 26. A gift is not consummate until delivery, and until then the party may revoke [**17]  it. A true and proper gift must take effect immediately; otherwise it is no gift, but a contract. In Twyne's case, one badge of fraud assigned was, that the donor continued in possession, and by reason thereof, traded and trafficked with others, and deceived them. And in Edwards vs. Harben, 2 T. R. 587, it was established as a general rule, that unless possession accompanies and follows the deed, it is fraudulent and void. These are undeniably principles of the common law. They are the tests which the common law applies in order to try the intent under the statutes, for the statutes say nothing of badges of fraud. They speak of the intent, which is to be argued from the principles of the common law. Recollect also, that in gifts under the statute, the possession passed, and even such voluntary gifts the statute avoided--because the English law knows but one species of gift, i. e. attended with possession. Does the act of 1763, ch. 13, alter the case here. That act justified the donor's possession, which at common law was always a badge of fraud; it did nothing more. It barely removed the presumption of fraud arising from possession. Garrett vs. Hughlett, 1 Harr. & Johns. 3 & 4. But [**18]  it did not negative other indicia of fraud--as want of consideration, or for affection and blood, or to a son a cousin, relation, &c. Comyn's Dig. tit. Covin, (B 2.) And here there is no consideration for the deed. The act does not say all gifts shall be good, but in the general phraseology of all similar acts. (See 1729, ch. 8, s. 5.) No gift shall be good without, &c. It was only intended to take off the presumption of fraud from the possession; but if there be fraud otherwise, acknowledgment and record is no protection. Again, the gifts to which the act relates are common and ordinary gifts, where the donor remains in possession, yet the other requisites of a gift are complied with, (a symbolical delivery, &c.) such as pass property. Certainly not conditional gifts or prospective, with express reservation of its future operation, and on its face revocable and avoidable.

3. The gift in this case was revocable on its face; and by the subsequent sale of the negroes by Tucker to Bohn, he Tucker, (as he had a right to do so,) did revoke it. At common law, as before remarked, if a gift was not accompanied with delivery and possession, it was properly a contract. Here there was no [**19]  such delivery, and the gift was only prospective and conditional, The very terms used are the terms of a will, and as such it may fairly be assimilated to a legacy, or donatio causa mortis; and in either case is revocable. Roberts' Fraud. Conv. 442. Spratley vs. Wilson, 3 Serg. & Lowb. 8, (note.) "To have and receive at my decease, and not before," is the phrase. Now, can it be urged that any property passed, (as is the phrase of the act of 1763,) at the time of the gift, when it thus is expressly negatived; and when he died there was none in him to pass. It is not thus within the acts of 1763, for that certainly does not refer to gifts in futuro, and this is no other; no property having passed, and none could pass in praesenti from the words used. It cannot be considered a gift under that act; it is not necessarily so because acknowledged and recorded; for usually the acknowledgment refers to the act of assembly in such cases made and provided. Here Tucker says it is his act, according to the true intent and meaning thereof. He best knew his own meaning; he gave his own construction when he sold to Bohn, and revoked the gift; and for his own honour and memory it is just so to consider [**20]  it. Beside, Harriet Tucker still lived with her father when he brought the negroes to Bohn, and made sale of them. It was an act of which she must be supposed to have had knowledge and privity, and both may be considered parties to the sale.

4. As to the issue of Darkee, born during the lifetime of Tucker, they belong to tenant for life, or his assignee, and cannot be claimed in this action. Standiford vs. Amos, I Harr. & Johns. 526.

5. The parties to this action are misconceived. Harriet Tucker having married in the lifetime of her father, the gift enured to Headley, the husband, at the father's death, and his representatives as such are the proper plaintiffs. If property be acquired to the wife after marriage, such property belongs absolutely to the husband; so that if husband dies before it is reduced to possession or is paid, or is due, it would go to his executors, and not to the wife. Reeves Dom. Relations, tit. Baron & Feme, chap, 4. 3 Amer. Dig. 328, pl. 185, cites Walker vs. Mebane, 1 Murph. N. C. Rep. 41. A distributive share of personal property accruing to a feme during marriage, vests in husband, and in case of death goes to his representatives, and not to the [**21]  wife. Griswold vs. Penniman, 2 Conn. Rep. 564, cited in 4 Amer. Dig. 309, pl. 61.

Mitchell, on the same side. There is no proof from which the jury could infer an actual or constructive conversion. To show that it was incumbent on the plaintiff to prove a demand and refusal, he cited 6 Bac. Ab. tit. Trover, 678, 682, 706. 2 Phill. Evid. 118, 119, (note.) Brown vs. Cook, 9 Johns. Rep. 361. Sturtevant vs. Ballard, Ibid 341. And to show that a will was revoked by a subsequent sale, he cited Nan Mickel's case, 14 Johns. Rep. 324. 2 Pow. on Mortg. 1109, (note;) and Bayard vs. Hoffman, 4 Johns. Chan. Rep. 450.

Hanan, for the Appellee. The gift is not void at common law. 3 Bac. Ab. tit. Fraud, 7. There is nothing on the face of the deed to show that a fraud was intended; the donor's remaining in possession is stipulated in the deed. Kadogan vs. Kennett, 2 Cowp. 436. It is a good deed under the act of 1763, ch. 13, s. 2. And independent of that act it is valid. It is not void under the statute of 13th Elizabeth. That statute extends to creditors only. Kadogan vs. Kennett, 2 Cowp. 434. The statute of 27th Elizabeth relates to purchasers of lands, and not of personal property. Was [**22]  the appellant a creditor? If he was, he was a subsequent creditor. A man not in debt may make a voluntary gift to his children. Lord Townshend vs. Wyndham, 2 Ves. 11. Verplank vs. Sterry, 12 Johns. Rep. 557. Bennett vs. Bedford, 11 Mass. Rep. 390, 421. Parker vs. Procter, 9 Mass. Rep. 390. Walker vs. Burrows, 1 Atk. 94. Middlecome vs. Marlow, 2 Atk. 520. Rob. on Fraud. Convey. 452. The deed is good under the statute of 27th Elizabeth. Rob. on Fraud. Convey. 7. But it has been said that the action is misconceived. The appellee married, and her husband died after her father. By the deed she was not to have the property until after her father's death. This is a chose in action, over which the husband exercised no control. It survived to the wife. Roper on Baron & Feme. Schuyler vs. Hoyle, 5 Johns. Chan. Rep. 209. Wright vs. Rutter, 2 Ves. jr. 675. Carr vs. Taylor, 10 Ves. 578; and Wildman vs. Wildman, 9 Ves. 174.

R. Johnson, also for the Appellee. It has been contended, that it did not appear that there was a demand and refusal. Demand and refusal are only evidence of conversion; other evidence may be admitted of that fact, than that of demand and refusal. The appellant holds and [**23]  uses the property as his own, which is sufficient evidence of conversion. It has also been contended, that the action is improperly brought, admitting the deed to pass the negro in question to the appellee. In 1814 the negro woman was the right of the appellee, acquired by her previous to her marriage. During her coverture the possession was out of her. The right to sue for the negro accrued during the coverture; but the right to the negro accrued before. Suppose a bond is given to the wife while she is a feme sole, on the death of her husband it survives to her, if not reduced into possession by the husband. 1 Chitty's Plead. 17, 21. Her right was a legal one before her marriage, but not a right in possession. 2 Blk. Com. 433, 434. The State vs. Krebs, 6 Harr. & Johns. 31. 3 Bac. Ab. tit. Executors, &c. (H 4,) 65.

The deed was not void at common law. It is a conveyance to a child in the absence of any debts due by the father at the time. The property remaining in the donor's possession was not evidence of fraud, because the deed provided that he should have the use and possession during his life. the deed is not void under the statute of 13th Elizabeth, even if the appellant [**24]  be considered as a creditor. He is, if at all, a subsequent creditor. A deed is never set aside where there is a settlement on the family of the donor, who is not in debt at the time of the settlement. In Jackson vs. Myers, 18 Johns. Rep. 425, the suit was depending when the deed was made. But can the appellant be esteemed a creditor? He is not a creditor now, being in possession of the negroes. But he is said to be a creditor, because the sale to him is void. This judgment must be affirmed, before he can be considered a creditor. If the judgment is reversed, he would not be one. As a creditor he has no right to hold the property. The statute 13th Elizabeth never meant to place a creditor in a better situation than he was in before the deed. Dorsey vs. Smithson, 6 Harr. & Johns. 64. One creditor has no right to hold the property of the debtor. It is a fraud upon the other creditors to do so. The deed cannot be affected by the statute 27th Elizabeth, which relates to real estate only, and was intended to be coextensive with the statute 13th Elizabeth.

It has also been insisted that the deed is not a valid deed under the acts of 1763, ch. 13, and 1729, ch. 8. If the deed comes within [**25]  the provisions of the act of 1763, then it is a valid one; or if not under that act, it is a good deed at common law. But the deed is within the letter and spirit of the act of 1763. That act intended to provide for all cases where the possession of the property remained in the donor, by the deed's being acknowledged and recorded. It was intended to remedy a defect in the act of 1729. It is also a good deed within the act of 1729, and good against the executors, &c. of Tucker.

The deed, it has been said, is to be considered a donation in last sickness. But such a donation must be on the death-bed of the donor, and possession of the property must be delivered; if the donor recovers, the gift is void, and the property reverts to him. But here there was a delivery of the deed, and the record of it is evidence of its delivery; which shows the donor intended it to have effect, and not to be revocable.

Mitchell, in reply, insisted that it was incumbent on the plaintiff to prove a demand and conversion. This was a conveyance of a present interest, and passed by delivery of the deed, subject to the use of the father for life. When the appellee married, she resided with her father,  [**26]  and it was a conjoint possession of the slave by her and her father. Being in her possession when she married, the slave vested eo instanti in the husband. How was he to reduce the slave into possession; living in the same house, he obtained the possession which his wife had. A note given to a feme sole, on her marriage vests in the husband. Combs vs. Williams, 15 Mass. Rep. 243. Where the interest vests during the coverture, the husband must sue alone. Reeve's Dom. Rel. ch. 4. There is no case at law where the husband has not a right to a legacy left to his wife. Buckley vs. Collier, 1 Salk. 114. 1 Selw. N. P. 246, 269. 3 Selw. N. P. 1159. Ankerstein vs. Clarke, 4 T. R. 617. No person could bring an action for the slave, as it was a gift in presenti, or a gift postponed until the death of the donor. If the first, then the slave must have been delivered to the appellee. A symbolical delivery will not do, it must be an actual delivery--an actual transmutation of possession. If the deed was not valid at common law, it was not under the act of assembly. 2 Pow. on Mortg. 1026, 1027. 1 Pow. on Mortg. 31, 32. If possession was delivered at the time of the gift, the interest vested in the [**27]  husband; but if not delivered then, the gift was revocable by Tucker. A deed, purporting to be a deed of manumission, may be considered as a will. Nan Mickell's case, 14 Johns. Rep. 324. Supposing it to be a gift, it was a voluntary one, and void at common law, and under the statutes 13th and 27th Elizabeth. A voluntary conveyance, without consideration, is a fraud. Subsequent and prior creditors are placed precisely on the same footing. Bayard vs. Hoffman, 4 Johns. Ch. Rep. 450.  

JUDGES:
The cause was argued on the first bill of exceptions, before BUCHANAN, Ch. J. and EARLE, MARTIN, STEPHEN, and DORSEY, J.  

OPINIONBY:
DORSEY 

OPINION:

 [*271]  DORSEY, J. delivered the opinion of the Court. The only question brought before the court below in this case, connected with this appeal, was, whether the voluntary deed of gift of Thomas Tucker to the appellee, was void by the statutes 13th and 27th of Elizabeth, against fraudulent conveyances? We think the court decided correctly on the point submitted for their determination, according to the testimony in the cause. The deed of gift was duly executed, acknowledged and recorded, in 1796, and fourteen years afterwards the donor sold the negro, given [**28]  by said deed, to the appellant. It is not shown that in 1796, or between that time and the year 1810, Thomas Tucker owed one cent to any human being. Upon what principle then can it be contended that his deed of gift was void under the 13th of Elizabeth? It is not a conveyance of lands, tenements or hereditaments, and therefore not a case embraced by the provisions of the statute of 27th of Elizabeth. But the court below, presuming from the manner in which the prayer 

 [*272]  was made to them, that their establishing the validity of this deed removed all impediments to the appellee's right of recovery, instructed the jury that he was entitled to recover. A new objection hath been raised to this instruction, to which the attention of the county court does not appear to have been called, viz. that there was no evidence offered to the jury from which they could find either an actual or an implied conversion. This the court think is a fatal objection to the opinion given by the court below, and to the recovery which has been had thereon, they therefore reverse their judgment.
JUDGMENT REVERSED,

And a procedendo, on motion of the Appellee's Counsel, was refused [**29]  .  

20 of 33 DOCUMENTS 

CHAPMAN vs. WILLIAMS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

7 H. & J. 157; 1826 Md. LEXIS 27 

June, 1826, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court. Assumpsit for work and labour, &c. for money had and received, and an insimul computassent. The defendant, (now appellee,) pleaded non assumpsit, and issue was joined. The facts of the case are stated by the Judge who delivered the opinion of this Court.  

DISPOSITION:
JUDGMENT REVERSED, AND PROCEDENDO AWARDED.  

HEADNOTES:

C was employed by W, principal keeper in the Maryland Penitentiary, (and who, as such, had authority to employ deputies,) to act as deputy keeper, at a certain annual compensation. The compensation of all the officers of the institution was by law to be drawn from the treasury of the state. C's compensation was received from the treasury by W, who was afterwards dismissed from the institution. In an action of assumpsit by C against W, to recover this sum--Held, that he was entitled to recover, and that it was immaterial in what manner C was employed by W, whether it was in W's public or individual capacity; and that it was also immaterial, whether he had paid over the compensation to the directors of the institution, or not, as they had no authority to receive it, and his responsibility to C was in virtue of his receipt of the fund.  

COUNSEL:
No Counsel appeared for the Appellant.

Heath, for the Appellee, referred to the acts of 1809, ch. 138, s. 17; 1811, ch. 177, s. 3; and 1813, ch. 69. And to show that the appellee was not liable in his individual character, he cited M'Donough vs. Templeman, 1 Harr. & Johns. 156. Macbeath vs. Haldimand, 1 T. R. 172. Unwin vs. Wolseley, Ibid 674. Hodson vs. Dexter, 1 Cranch, 345. Myrtle vs. Beaver, 1 East, 135. Walker vs. Swartwout, 12 Johns. Rep. 448. Key vs. Parnham, 6 Harr. & Johns. 420. Gidley vs. Palmerston, 7 Serg. & Low. 434; and Olney vs. Wickes, 18 Johns. Rep. 122.  

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

OPINIONBY:
ARCHER 

OPINION:

 [*158]  ARCHER, J. delivered the opinion of the court. This was a suit instituted in Baltimore County Court by the plaintiff, (now appellant,) who was a deputy-keeper [**2]  in the penitentiary, to recover from the defendant, who was principal keeper, the amount of a quarter year's salary due to him on the 4th of October, 1819. The service of the deputy-keeper in that capacity, and his original employment by the principal keeper, and his continuance in service from the 29th of September 1817, until the 4th of October 1819, were given in evidence. The defendant had regularly paid the plaintiff for all services prior to the 5th of July 1819. Evidence was also given that the amount of salary due the plaintiff to the 4th of October 1819, had been received by the defendant at the expiration of the last quarter of the plaintiff's service, from the treasury of the state, through the Union Bank of Maryland, and that it had never been paid to the plaintiff. The plaintiff furthermore proved, that all the funds in the hands of the defendant, as principal keeper, had been by him paid over to the directors of the penitentiary, the amount of the defendant's wages being retained at the request of the directors. Upon the above statement of facts the court below directed the jury, that if they believed the plaintiff was appointed deputy-keeper by the defendant as  [**3]  

 [*159]  agent of the state, they should find a verdict for the defendant; and if they were of opinion that the defendant contracted with the plaintiff in his individual character, they should find a verdict for the plaintiff. By the act of 1817, ch. 72, the directors of the penitentiary have power to appoint at their pleasure all such deputy-keepers as they may deem necessary for the effectual administration of the concerns of that institution, and have power to fix and regulate their compensation and salary, so that it should not exceed what had before been allowed by law, which, by the acts of 1811, ch. 177, & 1813, ch. 69, was annually $ 400. The principal keeper had originally the power to appoint his deputies, and had authority to appoint the plaintiff a deputy when he was first introduced into the institution; and he seems to have been continued in that capacity by the directors, although no formal reappointment appears to have taken place; for his salary has been regularly drawn from the treasury for more than two years after the passage of the law of 1817, and until the expiration of the plaintiff's service, which could only have been done by their assent and [**4]  approbation. The plaintiff's salary could only be drawn from the treasury by himself, or by his authority. No power over it is confided by law to any of the officers of that institution. The defendant then must have received the money from the treasury of the state, not as a public agent, but under an authority derived from the plaintiff, and must be considered in the light of a private agent, and answerable as such. But if, indeed, without such authority, he had wrongfully possessed himself of the plaintiff's salary, the plaintiff would have an undoubted right, for all the purposes of this action, to consider him in the light of an agent, and charge him as such. In this view of the case, the inquiry is obviously immaterial in what manner the original employment of the plaintiff was made, whether by the defendant in his public or individual capacity, for this action is grounded on the implied promise resulting from the receipt of funds with which, in his public capacity, he had nothing to do, and over which he had no control, and is not founded at all upon the original contract of employment.
If by any construction of the bill of exceptions it could be inferred that the plaintiff's [**5]  salary had been paid over to the inspectors 

 [*160]  of the penitentiary on the defendants' retirement from office, it would, nevertheless, not change the character of the defendants' responsibility. For he is chargeable in virtue of his receipt of the funds, and he cannot defend himself upon the ground that he had paid them over to those having no authority to receive them, but was bound, under the circumstances of this case, to hold them for the plaintiff.
JUDGMENT REVERSED, AND PROCEDENDO AWARDED.  

21 of 33 DOCUMENTS 

COURSEY vs. BAKER.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

7 H. & J. 28; 1826 Md. LEXIS 8 

June, 1826, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Queen-Anne's county court. Action of assumpsit, brought on the 17th of June 1824, by the appellee against Lambert W. Spencer, (who was not arrested on the writ which issued in the cause,) and the appellant. The declaration contained two counts--one on a promissory note, stated to have been made by Spencer and Coursey, carrying on trade and commerce, in their partnership name of Lambert W. Spencer & Co. on the 14th of May 1820, and payable on demand to the appellee, or order, for $ 1106 95, with interest thereon from and after the 1st of December 1818. The other count was for money had and received. The defendant pleaded non assumpsit, non assumpsit infra tres annos, and actio non accrevit infra tres annos. The plaintiff joined issue on the first plea, and replied the general replications to the other pleas, and issues were joined.

At the trial the plaintiff read in evidence the following note: "$ 1106 95.     Baltimore, May 6th, 1820.

On demand, we promise to pay William Baker, or order, one thousand one hundred and six dollars and ninety-five cents, for value received, with legal interest thereon from and after the first day of December, one thousand eight [**2]  hundred and eighteen. Lambert W. Spencer & Co."

He further read in evidence from the ledger of Lambert W. Spencer & Co. the account stated in the name of Lambert W. Spencer & Co. against William Baker & Son, commencing on the 3d of April 1817, and ending on the 7th of March 1818. On the 1st of December 1818, the balance stated by this account to be due to William Baker & Son, was $ 1106 95, and the account was closed by the following entry: "1820, May 6. To our note this day, on interest from the 1st day of December 1818, given to William Baker, $ 1106 95." The plaintiff then proved by one Stewart Redman, that Gerald Coursey and Lambert W. Spencer carried on trade together at Easton, till the year 1818; that in November 1818, the store was broken up at Easton; that G. Coursey took part of the goods, and Lambert W. Spencer took part, but a greater part were carried up to Wye Landing, which is distant from Easton about fourteen miles; and that he the witness then became concerned with Spencer and Coursey, and a firm was established in the name of Stewart Redman & Co. of which the witness, Lambert W. Spencer, and Gerald Coursey, were partners; and that the goods which were brought [**3]  from Easton, of the firm of Lambert W. Spencer & Co. together with other goods, were sold at that place by said firm of Redman & Co. The plaintiff also proved by the same witness, that he, the witness, had heard a conversation in 1821, between Spencer and Coursey, in relation to the affairs of Lambert W. Spencer & Co. with William Baker & Son, and that Spencer insisted that this debt ought to be paid by Coursey, and that Coursey insisted that it ought to be paid by Spencer. The witness also proved that the firm of William Baker & Son, in the years 1816, 1817 and 1818, consisted of William Baker and Joseph Baker; and that William Baker, (the plaintiff,) and Joseph Baker, resided in the city of Baltimore in 1818, and are still alive. The witness also proved, that in 1823 he had a conversation with Lambert W. Spencer, who told him that a short time before, he, and G. Coursey and William Baker, had a meeting, when the books were produced for the purpose of ascertaining the situation of the parties in relation to the partnership, and to see what each of them ought to pay, but that nothing effectual was done; that Baker made figures and calculations, and that Coursey was found considerably [**4]  in arrear. The defendant then proved by one John C. Ruth, who acted as clerk for Lambert W. Spencer & Co. at Easton, in the years 1816, 1817 and 1818, that the first, second, third, fourth and fifth lines, in the entries on the debit side of the account produced by the plaintiff, and also all the first, second, third, fourth and fifth lines, in the credit part of the account, were in his handwriting; that the sixth line in the credit part of the account, and the addition of the same, and the sixth and seventh lines in the debit part, and the addition of the same, and also the balance struck, was in the handwriting of William Baker, the plaintiff, and that the writing on the account of the 6th of May 1820 was Lambert W. Spencer's, one of the partners of Lambert W. Spencer & Co. The court having decided on the prayer of the defendant, that if the note in question was given after the dissolution of the partnership, without his consent, he was not obliged to pay it, the defendant then prayed the court to instruct the jury, on the supposition that the note was given during the existence of the partnership, that if they believed from the evidence that it was given to William Baker, in consideration [**5]  of a debt due from Lambert W. Spencer and Gerald Coursey, trading under the firm of Lambert W. Spencer & Co. to William Baker and Joseph Baker, trading under the firm of William Baker & Son, they must find a verdict for the defendant, unless they also believed from the evidence that it was given with the approbation and knowledge of Coursey, the defendant. This instruction the Court, [Earle, Ch. J. and Purnell, A. J.] refused to give. The defendant excepted; and the verdict and judgment being against him, he appealed to this court.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

Where there are joint traders, and one of them draws a note, gives a letter of credit or guarantee in the name of all the partners, it binds all.

The act of each partner, in a transaction relating to the partnership, binds all the partners; and to this rule there is no exception, except what may grow out of covin, or such gross negligence as may be equivalent to covin.

A promissory note given by one of two joint partners to W B, for a debt due from the partners to W B and W C, also partners in trade, may be sued on, in the name of W B, and his recovery is as trustee for W B and W C, and enures to their benefit.

Where there was a variance between the date of a promissory note declared upon, and that offered in evidence--Held, that as there was a count in the declaration for money had and received, the note was, under that count, properly given in evidence.  

COUNSEL:
Carmichael and W. A. Spencer, for the Appellant; and by

Chambers and R. Spencer, for the Appellee.  

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

OPINIONBY:
ARCHER 

OPINION:

 [*31]  ARCHER, J. delivered the opinion of the court. The prayer to the court below, the rejection of which gave rise to the present appeal, presupposes, and is bottomed upon, the existence of the partnership between Spencer & Coursey, at the time the promissory note was drawn, upon which this suit was instituted. This note was drawn by Spencer, in the name of the firm, for a debt due from the firm to  [**6]  William Baker & Son.
It is a settled principle, that where there are joint traders, and one draw a note, give a letter of credit, or guarantee in the name of all the partners, it binds all. The act of every single partner, in a transaction relating to the partnership, binds all the others. No exception is known to this general rule, except what may grow out of covin, or such gross negligence as may be equivalent to covin. Now in this case no fraud is imputable to Baker & Son; the note was drawn for and on account of a debt due from Spencer & Co. and appears to have been in the usual course of mercantile transactions. The power of one partner to bind another by bills and notes drawn in the name of the firm, it is true, is only an implied power, and Spencer & Co. might have stipulated to the contrary; and if a third person, having notice of such a stipulation, had in defiance of such notice and stipulation, accepted a security so drawn, the right of such person to a recovery might well be questioned. Gallway v. Matthew & Smithson, 10 East 264. But here there is no pretence for questioning the validity of this instrument upon such grounds. The note is executed by one [**7]  of the firm, in the name of the firm, in the course of their business, according to the custom of merchants, and pursuant to the implied power which he had, from the nature of the case, to contract for, and bind the company. No express assent or approbation was necessary to make it obligatory upon both.
This note was then binding on the firm, unless its having been given to William Baker alone, instead of being drawn payable to Baker & Son, can exonerate the firm from liability. Authorities need not be adduced to shew that Baker could have given a release which would have discharged the firm of Spencer 

 [*32]  & Co. A payment to him would have been equivalent to a payment to him and his copartner. This being the case, can it be doubted but that a recovery in this action would enure to the benefit of Baker & Son, and that Spencer & Co. would, by such recovery, be discharged from all liability upon the original cause of action? It is certainly true that the note given does not extinguish or merge the original cause of action of Baker & Son, unless it had been received in satisfaction of the debt; but they could not recover on such original cause of action [**8]  until this note, taken by one of the firm, should be proved to have been lost, or produced and cancelled at the trial. The Patapsco Insurance Company vs. Smith, et al. 6 H. & J. 166. Yet a suit is certainly sustainable upon the note in the name of the payee, in whom the legal title is alone vested, and he recovers as a Trustee for Baker & Son. Van Ness vs. Forrest, 8 Cranch 30.
As to the question which has been raised relative to a variance between the date of the note offered in evidence, and that declared upon, it is only necessary to observe, that the promissory note was properly given in evidence under the count for money had and received.
We concur with the court below.
JUDGMENT AFFIRMED.  

22 of 33 DOCUMENTS 

CLOPPER'S Adm'r. vs. THE UNION BANK OF MARYLAND.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

7 H. & J. 92; 1826 Md. LEXIS 20 

June, 1826, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Ballimore County Court. Assumpsit brought on the 9th of March 1820, by the Appellees, the plaintiffs in the court below, against the Appellant's intestate. The declaration contained two counts--one on a promissory note drawn on the 23d of June 1819, by Clopper, in favour of Isaac Phillips & Co. for $ 3,000, payable sixty days after the date, and endorsed by Phillips & Co. to the plaintiffs. The other for money lent and advanced. The defendant pleaded non assumpsit, and issue was joined.

At the trial it was admitted that the note, upon which this action was brought, was one of eight notes, drawn by Andrew Clopper, in favour of and endorsed by Isaac Phillips & Co. and negotiated at the Union Bank of Maryland, for the accommodation of the endorsers, each for $ 3,000, and payable at different periods respectively, from the 17th of June to the 12th of August, 1819; that previous to the falling due of any of these notes, on the 16th of June 1819, Isaac Phillips conveyed, by deed of mortgage, to the bank, his dwelling-house, and lots attached thereto, as a collateral security for the payment of the notes, and that the bank in the said mortgage allowed Phillips three years [**2]  for the redemption of the property mortgaged. That on the 17th day of June 1819, the day on which the first of the notes fell due, the cashier of the bank wrote the following letter to Clopper, the drawer: "This bank hold eight notes drawn by you, in favour of Isaac Phillips & Co. for their accommodation, each for $ 3,000; the first of these notes falls due and payable this day, the residue of the notes become payable as follows:" The 2d note for $ 3,000, payable 21--24 June, 1819; the 3d for 3,000, on the 28--1 July; the 4th for 3,000, on the 5--8 July; the 5th for 3,000, on the 12--15 July; the 6th for 3,000, on the 19--22 July; the 7th for 3,000, on the 2--5 August, and the 8th for 3,000, on the 9--12 August; "as security in part, or as collateral security for payment of your notes, I. Phillips has conveyed, by deed of mortgage to this institution, his dwelling-house and lots attached thereto; the bank have given three years for the redemption thereof. I am instructed by the board to make you acquainted with these circumstances, and to inform you that your notes, as above recited, if not paid, will be held as security to the Union Bank of Maryland, and that if there be hereafter [**3]  any deficiency, the bank will hold you accountable for the same." That the above letter was delivered on the same 17th of June 1819, to Clopper, to whom it was addressed. That on the 9th of September 1819, the following letter was addressed by the cashier of the bank to Isaac Phillips & Co. and received by them. "Union Bank of Maryland, September 9th, 1819. The board of directors of the Union Bank of Maryland, have resolved that a reduction shall take place upon accommodation paper, commencing on the 1st of November next, to be paid at the rate of ten percent. in every sixty days, upon the sum required to be paid; the reduction required from you will be $ 12,000." That the said several notes successively falling due on the several days mentioned above, were not paid by Clopper or Phillips & Co. and that neither of them were ever renewed at the bank, except that the first was delivered up to Phillips & Co. on receiving from them the first of eight promissory notes, given in pursuance of the aforesaid deed of mortgage; and that the proceeds of the mortgage were subsequently applied, by arrangement, to the extinguishment of part of the notes, of which the note, upon which this action [**4]  is brought, was not one. That the following is a correct copy of the mortgage deed referred to. "This indenture made this 16th day of June 1819, between Isaac Phillips, merchant, of the city of Baltimore, and state of Maryland, of the one part, and the President and Directors of the Union Bank of Maryland, of the city of Baltimore, and state aforesaid, of the other part, witnesseth," &c. "And whereas the said Isaac Phillips is indebted to the said president and directors of the Union Bank of Maryland twenty-four thousand dollars, upon eight promissory notes, for three thousand dollars, drawn by Andrew Clopper, to and in favour of Isaac Phillips and Company, and by them endorsed and discounted at said bank, for the use and accommodation of the said Isaac Phillips and Company; and to secure the payment thereof, with interest thereon, the said Isaac Phillips hath agreed to execute these presents. Now this indenture witnesseth, that the said Isaac Phillips, in consideration of the said debt or sum of twenty-four thousand dollars, due and owing," &c. "and for the better securing the payment thereof, with interest," &c. "and also in consideration of the further sum of five dollars," &c.  [**5]  he conveyed to the president and directors, &c. sundry parcels of land, &c. "provided always, and these presents are upon this express condition, and it is hereby declared to be the true intent and meaning hereof, and of the said parties hereunto, that if the said Isaac Phillips, his heirs, executors or administrators, or any of them, do and shall, within the term of three years from the date hereof, well and truly pay, take up and retire, all and every the promissory notes herein before mentioned, amounting together as aforesaid to the sum of twenty-four thousand dollars, which have been negotiable as aforesaid, at the Union Bank of Maryland, for the use of the said Isaac Phillips and Company, and any and all other notes that may at any time hereafter be substituted for and in lieu of the said notes already negotiated as aforesaid, by way of extending, in point of time, the said accommodation in whole or in part, and shall, in the mean-time, and at the expiration of every sixty days in succession, pay at the said Union Bank of Maryland the discount or interest upon the said eight promissory notes, or such part of them as shall, from time to time, remain unpaid, then this indenture,  [**6]  and every clause, matter and thing, herein contained, shall cease, determine, and be absolutely void, and of no effect in law or equity, any thing herein contained to the contrary thereof, in anywise notwithstanding." That upon this deed of mortgage a bill of foreclosure having been filed on the 30th of August 1820, there was a decree, by consent, on the 19th of December 1820, for the sale of the mortgaged property, under which decree it was sold on the 2d of March 1821, for the sum of $ 12,000, and that sum was applied to the partial extinguishment of the said accommodation loan. It is also admitted, that this suit was instituted on the last but one of the first mentioned notes of Clopper. That Phillips & Co. did not pay or renew the notes, so given as aforesaid, by them, to the cashier of the said bank, nor did they communicate with Clopper relative to the said settlement with the plaintiffs. That the first of the notes so drawn by Clopper, and endorsed by Phillips & Co. and discounted for the accommodation of the latter, was taken up and retired on the 5th day of August 1819, by the endorsers, by a substitution of the note of Phillips & Co. of that date, made payable to the cashier [**7]  of the bank for $ 3000, they paying the discount. That Phillips & Co. did also give their seven other promissory notes, of the dates, and for the sums, and made payable at the times herein particularly set out, to wit--one on the 12th, one on the 19th, and one on the 26th of August, 1819, for $ 3000 each, payable, one on the 11th, one on the 21st, and one on the 28th of October 1819. One other note on the 2d, one on the 9th, one on the 16th, and one on the 23d of September 1819, each for $ 3000, payable, one on the 4th, one on the 14th, one on the 18th, and the other on the 25th of November 1819. The defendant then gave in evidence, that Phillips & Co. were under the impression and belief, that on the delivery of the said notes, substituted as above stated for the original notes of which the defendant was the maker, the notes of the latter were to be given up and cancelled, but that there was no express agreement to that effect. That Isaac Phillips & Co. asked for the surrender of the second of Clopper's notes, when they gave their second note to the cashier, which was then, and ever after, refused and denied by the plaintiffs, as was also the case with the remaining six. The defendant [**8]  also gave in evidence, that at the time, but previous to the execution of the mortgage deed aforesaid, it was expressly stipulated by and between Isaac Phillips and the cashier of the said bank, on behalf of the plaintiffs, that Phillips & Co. should not be called on or required to pay any portion of the principal sums, lent as aforesaid as an accommodation to Phillips & Co. for the space of three years from the execution of the mortgage; and further, that no suit should be instituted against Andrew Clopper, until after the expiration of three years from the date of the mortgage, upon the aforesaid accommodation loan; and that to secure these advantages of time to Phillips & Co. and of indulgence to Clopper, were the inducements that led Phillips to offer to mortgage, and accordingly to execute a mortgage of his real estate to the plaintiffs, an estate which cost him more than $ 33,000; and that the defendant was and still is largely indebted, and under great embarrassments on his own account. The defendant then moved the court to direct the jury, that if they believed that the plaintiffs did agree with Phillips & Co. at the time of executing the said mortgage, that Clopper should [**9]  not be sued on said notes until the expiration of three years from that time, that then the present suit could not be maintained. He also prayed the court to direct the jury, that upon the whole case, if the jury believed the evidence, the plaintiffs were not entitled to recover. Which direction the Court [WARD, A. J.] refused to give. The defendant excepted; and the verdict and judgment being against him, he appealed to this court.  

DISPOSITION:
JUDGMENT REVERSED.  

HEADNOTES:

The execution of a mortgage, by an accommodation endorser to the holder, to secure the payment of a promissory note, does not extinguish the note in relation to any of the parties to it.

Where a promissory note was drawn by C, in favour of P, and by him endorsed to the holder, and P, after the note fell due, gave the holder his own note for the debt--Held, that the first note was not extinguished, unless the last was received by the holder, in substitution and in satisfaction of the first.

Giving time to the endorser of a promissory note, drawn and negotiated, with the knowledge of the holder, for the accommodation of the endorser, will not discharge the maker. In relation to the effect of giving time in cases of notes and bills of exchange, there is no distinction between real and accommodation paper.

A covenant not to sue generally, without any limitation as to time, is in law a release, and may be pleaded as such, but a covenant not to sue for a limited period, cannot be pleaded in suspension of a creditor's action; but if he sues upon it, the debtor's remedy is an action upon the covenant. But this latter doctrine does not extend to actions of assumpsit; and therefore, where the holder of a note, in consideration that the accommodated endorser, would give him a mortgage to secure its payment, stipulated that he would not, for a definite period sue the maker, and suit was brought against the maker before that period had passed, it was held that it could not be maintained, though the maker was no party to such stipulation.  

COUNSEL:
Williams, (District Attorney of U. S.) and R. Johnson, for the Appellant. 1. The acceptance of the mortgage, and of the substituted notes of Phillips & Co. extinguished the original notes as to Clopper, the maker. Williamson v. Andrew, 4 Harr. & M'Hen. 482. Williams vs. Hodgson, 2 Harr. & Johns. 474.

2. Clopper being a surety for Phillips & Co. and being known to be such to the appellees, was discharged by their giving time to Phillips & Co. to pay the note sued upon after it fell due. Chitty on Bills, 299, (Ed. in 1817.) Rees vs. Berrington, 2 Ves. jr. 540. King vs. Baldwin, 2 Johns. Chan. Rep. 559. Ludlow vs. Simond, 2 Caine's Cas. 58. Carstairs vs. Rolleston, 5 Taunt. 551. Withall vs. Masterman, 2 Campb. 179. Ex parte [**10]  Wilson, 11 Ves. 441. Laxton vs. Peat, 2 Campb. 185. Collett vs. Haigh, 3 Campb. 281. Brown vs. Maffey, 15 East, 216. French vs. Bank of Columbia, 4 Cranch, 161. Pothier on Exchange, No. 177, 178, 180. Chitty on Bills, 215. English vs. Darley, 2 Bos. & Pull. 61.

3. The agreement not to sue Clopper for three years from the date of the mortgage, was good and valid, and binding on the appellees; and this action being brought before the expiration of that time, was prematurely instituted. Littler vs. Holland, 3 T. R. 590. 4 Starkie's Evid. 1050. Cuff vs. Penn, 1 Maule & Selw. 21; and Watkins vs. Hodges & Lansdale, 6 Harr. & Johns. 38.

Taney and Kennedy, for the Appellees. It has been assumed as a fact, which the record will not justify, that the appellees knew that the notes, when they were discounted, were for the accommodation of Phillips & Co. It may be admitted that the appellees knew the fact at the time of taking the mortgage as a security from Phillips & Co. but there is no evidence of their knowledge when the notes were originally discounted; nor is there any evidence that the notes were renewed, or the discount paid on them, after the mortgage. The stipulation was that [**11]  the interest should be paid at the end of every sixty days.

1. The mortgage was not a substitution of the original notes, nor an extinguishment of them. Where a contract is merged, it must be by some subsequent act of the same parties. Where there is a previous joint liability a bond will extinguish a simple contract debt, but it must be a bond for the same debt, and intended as a substitution for the former contract. In this case there is no covenant in the mortgage for payment of the debt. This mortgage was taken as additional security, and does not extinguish the notes which were left as a subsisting debt. Collateral security may be taken without operating to extinguish the original debt. Hurd vs. Little, 12 Mass. Rep. 502. Chitty on Bills, 376. Whether or not the appellees received the notes of Phillips & Co. as a substitute for the other notes, was a fact for the jury, and as such must be proved. Patapsco Insurance Company vs. Smith, et al. 6 Harr. & Johns. 168.

2. The principle is, that if you give time to the drawer, you discharge all the endorsers, unless they consent to it. So the giving time to a preceding endorser, releases a subsequent endorser. Chitty on Bills,  [**12]  380, (Ed. 1821.) Carstairs vs. Rolleston, 5 Taunt. 551. Does an accommodation note, known to be such by the parties, stand upon different grounds than a real note? The cases of Laxton vs. Peat, 2 Campb. 185, and Collett vs. Haigh, 3 Campb. 281, cited for the appellant, have been both overruled by Fentum vs. Pocock, 5 Taunt. 192. See also Chitty on Bills, 383, (note,) and Kerrison vs. Cooke, 3 Campb. 362. And it is now settled, that there is no distinction in a court of law between real and accommodation notes. Wood vs. Repold, 3 Harr. & Johns. 125. Smith vs. Knox, 3 Esp. Rep. 47. Mallett vs. Thompson, 5 Esp. Rep 178. Carstairs vs. Rolleston, 5 Taunt. 551. Ex parte Bareclay, 7 Ves. 597. Clarke vs. Develin, 3 Bos. & Pull. 363. Stevens vs. Lynch, 12 East, 38. Chitty on Bills, 373.

3. The contract for delay was not a contract for three years indulgence. Phillips was to pay the interest; and even if he could not be sued, there is nothing to show that such contract enured to the benefit of Clopper. Carstairs vs. Rolleston, 5 Taunt. 551. If Clopper could not have the benefit of a release, he could not have the benefit of the extension of the time. He was no party to the contract, and [**13]  can take no advantage under it. If the time had been four instead of three years, the act of limitations would be a bar to Clopper's notes; for he was not bound by the contract. A covenant never to bring suit, is different in its legal effect, for the purpose of this question, from a covenant not to sue for a limited time. 5 Bac. Ab. tit. Release, (A 2,) 683, 684. But the contract could not prevent a suit even against Phillips. He would be left to his remedy on it if it was violated by the appellees.  

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

OPINIONBY:
ARCHER 

OPINION:

 [*99]  ARCHER, J. delivered the opinion of the court. We do not conceive, that by any transactions which have taken place between Phillips & Co. and the Union Bank of Maryland, in relation to the promissory note, which is in this suit the subject of litigation, there has been an extinguishment of the original contract. The mortgage taken by the Union Bank 

 [*100]  was only for the purpose of securing to that institution the payment of the securities mentioned in it. The parties to that instrument never intended that it should constitute a new debt, nor did it bind  [**14]  Phillips & Company by any new obligations; but it was a recognition of the existing liability, and was intended to operate merely as a security for its discharge. It contains an express stipulation that it is to be void upon the payment of the notes, of which Phillips & Co. were the endorsers. The notes given by Phillips & Co. after the execution of the mortgage, would not operate as an extinguishment of the notes drawn by Clopper, and endorsed by Phillips & Co. unless they were received by the bank in substitution, and in satisfaction of the prior notes. The record contains no evidence from which such an inference would be deducible.
It is urged, by the counsel for the appellant, that being only a security for Phillips & Co. and being known to be such by the Union Bank at the date of the mortgage given by Phillips & Co. by which an extension of time was granted to them, by such indulgence he has been discharged from all liability as the drawer of these notes. That in the ordinary case of principal and surety, time given to the principal discharges the surety, is a legal position as well settled as any other appertaining to the science. But its application [**15]  to a case of this description may well be questioned.
In every bill of exchange, the acceptor, and in every promissory note, the drawer, is in law the principal, and is first liable, and every endorser in the order in which his name appears on the bill or note. The endorsee may sue all or any of the parties he may choose. He has the entire dominion of the property in the bill, and a perfect right to make any arrangements he pleases with any of them, but he does it at his peril; for if he thereby alter the situation of any other person on the bill, to the prejudice of that person, he cannot afterwards proceed against him. Therefore, though he may give time to, or discharge his immediate endorser, he cannot grant indulgence to the drawer or acceptor, and afterwards proceed against the endorser. The discharge of, or the giving time to, any of the parties liable, does not discharge prior parties, but only those whose names are subsequent to the party thus discharged, or to 

 [*101]  whom indulgence is granted. This doctrine is laid down in Gwynne vs. Heaton, 1 Brown Ch. 4, in a note by Mr. Eden, and is abundantly supported by the numerous authorities there referred [**16]  to. Whether the note is one springing out of a consideration actually passing between the parties, or is only an accommodation note, does not seem to make a difference in the law in this respect. It is certain that a contrary doctrine has been held by Lord Ellenborough, in the case of Laxton vs. Peat, 2 Camp. 185. But this decision has, in the English courts, been since uniformly considered a deviation from established principles. Its authority was doubted by Chief Justice Gibbs in Kerrison vs. Cooke, 3 Camp. 362; and although in his decision in that case he attempts a distinction between it and Laxton vs. Peat, he does in effect overrule Lord Ellenborough's decision, and he expressed his regret that the term, accommodation bill, ever found its way into the law, or that parties were allowed to get rid of the obligations they profess to contract by putting their names to negotiable securities. Lord Eldon, in Ex parte Wilson, 11 Ves. 411, denounces any such distinction as that attempted to be made in Laxton vs. Peat. In the case of Fentum vs. Pocock, 5 Taunt. 192, the doctrine decided [**17]  in the case referred to, came in review before the judges of the court of common pleas, and it was there expressly overruled, and it was determined that nothing could discharge an acceptor but a release or payment, and that there was no difference between an accommodation acceptance, and an acceptance for value. Indeed in Mallet vs. Thompson, 5 Esp. 178, decided five years before the case of Laxton vs. Peat, Lord Ellenborough made a determination directly contrary to the case of Laxton vs. Peat. From this review of the adjudications, we can have no hesitation in pronouncing that the case of Laxton vs. Peat is not law. Courts of justice seem disposed to consider accommodation notes in the same light, as far as practicable, with notes for value. In this court, in the case of Wood vs. Repold, 3 H. & J. 125, it was adjudged that accommodation endorsers, as to their liability to each other, stood precisely in the same relation as did endorsers on notes for value, and that a subsequent endorser paying the amount of 

 [*102]  the bill, was not bound to look only for a contribution upon its payment from his co-endorsers, but that he had a [**18]  right to recover the whole amount from his prior endorser. They were not held at all in the light of co-securities, but each was considered as impliedly engaging to indemnify whomsoever should place his name on the instrument subsequently to him. As it regards the principle upon which notice has been required to be given, there does not appear to be any distinction between the different species of notes. Notice of nonacceptance and nonpayment, is required to be given, that the anterior parties to the bill may take the necessary measures to obtain payment from the parties respectively liable to them; and if notice be not given, it is a presumption of law that the drawers and endorsers are injured by the omission. And in the application of this principle, it is necessary that the courts should inquire into the liabilities of the respective parties to a note or bill, for the purpose of ascertaining whether this injury, either actual or presumptive, could take place. Where a note is drawn for the accommodation of the endorser, he is not entitled to notice of nonpayment, because the presumption of injury could by no possibility arise, the drawer not being answerable over to him upon his [**19]  payment. But this enquiry into the situation of the parties, their liabilities, and the circumstances under which it is drawn, is not peculiar to accommodation paper, but is applicable also to other notes. Thus a drawer, who has no effects in the hands of the drawee, and has no reason to expect the bill would be paid when it became due, is not entitled to notice. There seems to be a disposition of late manifested by the courts, to discountenance many of those subtle refinements which have, by a kind of judicial legislation, recently crept into the law of bills of exchange and promissory notes, and which have threatened to render it a science of cases merely, and not of principle. That this is the case may be seen by a reference to the opinion of Chief Justice Abbot, in Cory vs. Scott, 3 Barn. & Ald. 619, (5 Serg. & Low. 401.) When any system of laws is governed by plain and intelligible rules, it becomes known to the public, and the interests of a commercial people will thereby be better promoted than by trusting each case to judicial discretion. We do not believe that the appellant was discharged by the time given to Phillips & Co.

 [*103]  It is objected [**20]  that this suit, having been instituted by the Union Bank, in contravention of its agreement with Phillips & Co. not to sue Clopper for three years, has been prematurely brought. It is laid down in 5 Bacon's Ab. tit. Release, (A 2,) 683, that a covenant perpetual, as that the covenant or will not sue without any limitation of time, is a defeasance or absolute release, and is pleadable in bar as such; and a distinction is there taken between such a covenant and one stipulating not to sue for a limited time; and that in the latter case it could not be pleaded in suspension of the action, but the covenantee must seek his redress in an action upon the covenant. Such is the undoubted law in an action of covenant; but we do not find, from an examination, that it has ever been extended to the action of assumpsit; and we do not feel disposed, by adjudication from analogy to extend it; for it cannot but be admitted that it is a principle tending to inconvenience, and producing circuity of action. Besides, we conceive that by giving the agreement the effect of defeating the action, until the time of indulgence has expired, a greater certainty of justice will be attained [**21]  between the parties, than by driving the defendant to his action for damages on the agreement. But independent of this view of the case, we may observe, that the cause of action here, is one which may be sustained under the general count for money had and received; and in such an action the defendant is at liberty to place himself upon such defences, as will show that exaequo et bono, the plaintiff is not entitled to recover. We consider him, therefore, at liberty to give in evidence an agreement granting indulgence, where that agreement is founded on a proper consideration, and from which it would appear to be inequitable to allow the plaintiff, by violating his engagement, to recover. We cannot believe that this agreement is void for want of a consideration, for the inducement to its consummation is the mortgage which was entered into by Phillips & Co. to the bank.
Whatever might be the force of the objection, that this agreement not to sue could have no obligation, its consideration relating to land, and the mortgage containing the stipulation between the parties, it is sufficient to say that it preceded the mortgage, and that the testimony does not shew whether it is  [**22]  

 [*104]  in writing or not. This court cannot say it was a verbal agreement, for the purpose of invalidating it. If any reliance could have been placed on the fact of its having been merely verbal, it should have so appeared in the bill of exceptions.
We entertain no doubt but that the agreement is valid, and that Clopper may avail himself of it, although made by Phillips & Co. One man may surely make a contract for the benefit of another, which will enable that other to institute a suit upon it.
We consider that this suit has been prematurely brought, and that therefore the judgment of the court below must be reversed.
JUDGMENT REVERSED.  

23 of 33 DOCUMENTS 

VANDERSMITH vs. WASHMEIN'S Adm'r.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

1 H. & G. 4; 1826 Md. LEXIS 2 

June, 1826, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court. Action of Assumpsit for money paid, laid out and expended; had and received; lent and advanced; and on an insimul computassent. Non assumpsit pleaded, and issue joined. At the trial the plaintiff, (now appellee,) offered evidence, that the deceased, upon getting to the house of the defendant, (the appellant,) was taken ill, and there delivered to the defendant the sum $ 149 50, to be taken care of for him, the deceased. The defendant then offered evidence, by Peter Vandersmith, Dr. Marsh, and Benjamin Richardson, that the deceased arrived at the house of the defendant, and was taken very ill; that in about two or three hours afterwards, he told the defendant that he wished him to send for a physician, and to furnish him with every thing that was necessary, and to apply the cash delivered to him, the defendant, in payment of the physician's bill, and to the discharge of any expenses that might be incurred. That the defendant accordingly sent for a physician, and also went afterwards personally for him. That the physician attended the deceased during his illness, which lasted from Thursday until Saturday, when he died. That during the whole time,  [**2]  he was furnished with every necessary and attendance. That the defendant immediately after paid the physician's bill, amounting to $ 50, together with all funeral expenses, and other expenses attending the illness of the deceased, or in consequence of his death, and kept his horses, wagon, and other property, until about eleven days afterwards, when they were delivered to the present plaintiff. That the expenses so incurred, and which were reasonable, were paid between the 31st of August, on which day the intestate died, and the 5th of September 1822, and that administration was obtained on the 17th of June 1823. The plaintiff then prayed the court to direct the jury, that upon the evidence so offered he was entitled to recover the amount of his claim. Which opinion the Court, [Hanson and Ward, A. J. a] refused to give; but directed the jury, that the plaintiff was entitled to recover the amount of the money so deposited, after deducting therefrom such sum as they should think a reasonable compensation to the defendant for his attendance and care, and board of the deceased, and the feed of the horses, during the time of the illness of the deceased, and his funeral expenses, but not [**3]  the physician's bill, or any other expenses. The defendant excepted; and the verdict and judgment being against him, he appealed to this court.

a Archer, Ch. J. dissented. 

DISPOSITION:
JUDGMENT REVERSED.  

HEADNOTES:

After verdict in an action of assumpsit, by an administrator, a defective allegation in the declaration, of the promise to the administrator, and the death of the intestate, and an omission to make profert of the letters of administration, cannot be taken advantage of, though they might have furnished good causes of demurrer.

W, being taken sick at the house of V, deposited in his hands an amount of money, and directed V to send for a physician, to furnish him with every thing that was necessary, and to apply the money to the payment of the physician's bill, and of any expenses which might be incurred on his account during his sickness. V did send for a physician, and furnished W with every necessary and attendance during his sickness, which in a few days ended fatally. On his death V paid for all the expenses, including the physician's bill. In an action of assumpsit brought against him by W's administrator, to recover the amount of the deposit. Held, that V was to be allowed for the amount paid the physician, if it was such as he was entitled to receive, as well as the other expenses. That the fund placed in his hands by W, was to be considered as a special fund, and that in relation to it he was to be looked upon as a trustee, or agent, of the physician, for whose remuneration it was in part created; but that it would have been otherwise if V had received the deposit for safe-keeping only.  

COUNSEL:
R. B. Magruder, for the Appellant, contended--1. That the physician's bill was not a mere honorarium, but was recoverable, and therefore ought to have been allowed to be set off by the defendant below.

2. That the money put in the hands of the defendant below, by the appellee's intestate, was a special deposit for the use of the physician. 1 Com. on Cont. 49, 56. 2 Com. on Cont. 7, 26. Temple vs. Welds, 10 Mod. 315. Dowson vs. Scriven, 1 H. Blk. 218.

3. That the declaration was defective in not setting out properly the promise to the administrator, nor the death of the intestate, and in not making profert of the letters of administration.

Meredith, for the Appellee. To show that it was too late to take advantage of the alleged defect in the declaration, he cited 1 Chitty's Plead. 401. He also contended, that the deceased constituted the appellant his agent, but that agency was revoked by his death; and the appellant had, consequently, no right to pay the physician's [**4]  bill after the death. There is no settled law that a physician's bill for advice is to be paid. The promise in the declaration is laid to the intestate.  

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

OPINIONBY:
BUCHANAN 

OPINION:

 [*6]  BUCHANAN, Ch. J. delivered the opinion of the Court. The objections attempted to be taken to the declaration, that the promise to the administrator, and death of the intestate, are defectively set out, and that there is no profert of the letters of administration, though they might have furnished good causes of demurrer, come too late now, after verdict, and the case must be decided on the bill of exceptions taken at the trial. On which the only question raised is, whether the appellant was entitled to retain any thing on account of the physician's bill?
If the money, which was placed by the intestate, Frederick Washmein, in the hands of the appellant, was deposited with him for safe keeping only, and for no other purpose, he then would have had no right to pay any part of it over in discharge of the physician's bill. But the evidence is, that the deceased directed the appellant to send for a physician, to furnish him [**5]  with every thing that was necessary, and to apply the money placed in his hands to the payment of the physician's bill, and in discharge of any expenses that might be incurred. Now, if the meaning of the deceased was, that in the event of his death, the appellant should pay the attending physician out of the money so placed in his hands, and that formed one of the purposes for which it was lodged with him, (which would seem to have been the case, for it is difficult to suppose, that he intended, in the event of his recovery, that the appellant should be his paymaster,) then it was a special fund, only to be brought into action after the death of the intestate; and the appellant may be considered in the light of a trustee, or agent, of the physician, for whose remuneration the fund was in part created, and was warranted in paying his bill, if indeed the 

 [*7]  amount was such as he was entitled to receive. We think, therefore, that the court below erred in directing the jury, that the appellant was entitled to no deduction from the amount claimed in the action, on account of the physician's bill.
JUDGMENT REVERSED.  

24 of 33 DOCUMENTS 

BARGER, et ux. EX'x. of ATHEY, vs. COLLINS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

7 H. & J. 213; 1826 Md. LEXIS 32 

June, 1826, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court. Assumpsit. 1. For work and labour, and materials found. 2. Quantum meruit for work and labour, and for materials found, &c. 3. For money laid out and expended, lent and advanced. And 4. An insimul computassent, &c. The defendant, (now appellee,) pleaded non assumpsit, and issue was joined. The defendant also gave notice of a set off for money lent and advanced to, and paid, laid out and expended for, the plaintiffs' testator in his lifetime, &c. At the trial the plaintiffs, (the appellants,) offered in evidence the following paper, to show that the defendant was indebted in the amount therein mentioned: "Settlement of accounts this 1st day of March 1820, with Walter F. Athey, for bricks and brick work, and I do hereby acknowledge the following balance to be correct.

________________________________________________________________________________
Balance on Mr. Higginbothom's house, Franklin-	
  street,	$ 10 00	
Balance on six buildings, North Charles-street,	964 01	
On my account,	39 61	
	
	$ 1013 62	
________________________________________________________________________________

Balance of one thousand thirteen dollars and sixty-two cents.     Jas. W. Collins."

The defendant then offered evidence of his having paid for the use of Walter F. Athey the following sums,  [**2]  viz. $ 20, $ 30 and $ 145, by filing his account in bar. And further offered evidence to show, that Deter Barger and the said Walter F. Athey, were copartners in the bricklaying business, and did the work as bricklayers on the six buildings in Charles-street; and that Athey, and a certain George Shoemaker, were copartners as brick makers, and furnished the bricks to the defendant for the said six buildings mentioned in the memorandum offered in evidence by the plaintiffs, and that the work was done by Athey and Barger, and the bricks furnished by the said Athey and Shoemaker, in the year 1818, or 1819; and produced the following accounts, which were in the possession of the defendant, and are in the handwriting of Athey, viz.

________________________________________________________________________________
"Mr. James W. Collins, and others, for six houses in North	
Charles-street to Geo. Shoemaker & Co.	
1819, April 21. To 1500 paving brick at $ 11 per th.	$ 16 50	
To 6500 front brick at $ 15 per th.   	97 50	
  August 16. To 59,000 common brick at $ 8 per th.	472 00	
To 17,935 paving brick at $ 9 50 per th.	170 38	
	
	$ 756 38	
________________________________________________________________________________

________________________________________________________________________________
To W. F. Athey & D. Barger.	
To laying 6400 bricks at $ 3 50 per m.		$ 224 00   	
Aug. 16. To paving 505 yards back and front at 50	
  cents per yd.		75 75   	
To" &c. &c.		13 00   	
	
		$ 312 75   	
"Cr. By cash	128 50   	
   By," &c. &c.	14 33 1/2	142 83 1/2	
	
		$ 169 92 1/2	
"To 4 bushels lime, &c.		1 60   	
	
		$ 171 52 1/2	
________________________________________________________________________________

 [**3]  

________________________________________________________________________________
Mr. James W. Collins, and others, for six houses in	
North Charles-st. to Geo. Shoemaker, & Co.	
1818, Sept.	To 348,500 bricks at $ 8 per th.	$ 2788 00	
	To" &c. &c.	513 20	
	
		3301 20	
	"Cr. By" &c. &c.	2535 20	
	
		$ 766 00	
________________________________________________________________________________

________________________________________________________________________________
"To W. F. Athey & D. Barger.	
To laying 379,000 bricks at $ 3 50 per th.	1326 50 	
To "&c. &c.	108 75 	
	
	1435 25 	
"Cr. By" &c.	3 00 	
	
	1432 25 	
	766 00 	
	
"Balance	$ 2198 25 	
Turner Morehead's bill, &c.	275 75 	
	
	$ 1922 50"	
________________________________________________________________________________

To the production of this evidence, so offered by the defendant, the plaintiffs objected; but the court overruled the objection, and permitted the evidence to go to the jury. The plaintiffs then offered to prove, that the partnership which had existed between Athey and Shoemaker was dissolved in November or December 1819, and that Shoemaker then assigned, for a valuable consideration, all his interest in said concern, and all debts due said copartnership, to Athey. And also offered to prove, by the production of the memorandum first above written, that at the time the defendant signed the said paper, he had notice of such dissolution and assignment.  [**4]  Which evidence the court, on motion of the defendant, refused to permit the plaintiff to offer to the jury. The defendant then moved the court to direct the jury, that the plaintiffs were not entitled to recover. Which direction the Court, [Hanson, A. J.] accordingly gave. To these opinions and directions the plaintiffs excepted; and the verdict and judgment being against them, they appealed to this court.  

DISPOSITION:
REVERSED.  

HEADNOTES:

In an action of assumpsit for work and labour done, and materials found, where the plaintiff gave in evidence a written settlement between plaintiff and defendant, acknowledging a balance due by defendant, it is competent for the defendant to show that the items in the settlement are partnership claims due plaintiff and another.

An account stated is not conclusive on the parties to it, but may by either party be modified by other evidence.

Where a debt is due a partnership which is afterwards dissolved, and the debt is assigned to one of the partners, it is competent for such partner to sustain an action for it in his own name, by proving that the debtor, with a knowledge of such assignment, promised to pay it to him; and such a promise may be implied from the acts of the debtor, as well as expressly proved.

The mere filing an account in bar is no evidence of the truth of the account.

If the plaintiff shows himself entitled to recover any sum, which with interest amounts to a sum within the jurisdiction of the court, it is error for the inferior court to direct the jury generally that he is not entitled to recover. 

COUNSEL:
S. J. Donaldson, for the Appellants, contended, 1. The appellee is liable in this action to the appellants, although at the time of contracting the debt he was acting as agent for others.

2. The appellants are entitled to recover, although the debt was originally due to the appellants' testator, and his copartners.

3. The written acknowledgment of the appellee, offered in evidence, is sufficient proof of his having notice of the dissolution of the copartnerships, and of the appellants' testator having the entire interest in the debt claimed in this action, vested in him.

4. The evidence of the defendant in the court below, which was objected to by the plaintiffs, was not proper and legal evidence; and that of the plaintiffs, which the court refused [**5]  to permit to go to the jury, was legal and proper.

On the first point, he cited Owen vs. Gooch, 2 Esp. Rep. 567. Hanson vs. Roberdeau, Peake's N. P. Cases, 120. Hardacre vs. Stewart, 5 Esp. Rep. 103; and Thomas vs. Bishop, 2 Stra. 955.

On the second and third points--Welch vs. Mandeville, 1 Wheat. 235. Andrew vs. Bleeker, 1 Johns. Cas. 411. Warden vs. Eden, 2 Johns. Cas. 121, 258. Littlefield vs. Story, 3 Johns. Rep. 425. Master vs. Miller, 4 T. R. 340, per Buller, J. Morrough vs. Comyns, 1 Wils. 211. Fenner vs. Meares, 2 W. Blk. Rep. 1269. Innes vs. Dunlop, 8 T. R. 595. Banfill vs. Leigh & Jeffray, Ib. 571. Scott vs. Lancaster, 3 Harr. & Johns. 441. Allstan's Adm'r. vs. Contee's Ex'r. 4 Harr. & Johns. 351. Oble vs. Dittlesfield, 1 Vent. 153. Suretees vs. Hubbard 4 Esp. Rep. 203. Howell vs. Mac Ivers, 4 T. R. 690. Onion vs. Paul, 1 Harr. & Johns. 114. Peake's Evid. (Norris's Ed.) 394, cites Moore et al. vs. Hillin (MS.) 1 Com. on Cont. 327. Holmes vs. D'Camp, 1 Johns. Rep. 34. Israel vs. Douglas, 1 H. Blk. Rep. 239.

On the fourth point, he cited Peacock vs. Harris, 10 East, 104.

Williams, (District Attorney of U.S.) for the Appellee. Can one partner bring an action [**6]  in his own name where there is another partner alive? There was no evidence offered of a dissolution of the partnership between Athey and Barger, nor was any assignment by the latter to the former proved, or offered to be proved. The evidence then was properly rejected by the court. The two points as to the admissibility of evidence, are involved in the other two questions in the case, for it is with reference to the object for which the evidence was offered that its admissibility comes in question. Even if the judge below did err in the generality of his expressions, yet it is no cause for reversal, when the final results must be the same. Brazier vs. Clap, 5 Mass. Rep. 10. 1 Starkie's Evid. 438. Law vs. King, 1 Saund. 80, (note 1.) and Cooke vs. Sayer, 2 Burr. 749.

1. The appellants were not entitled to recover, because the appellee was only an agent for six buildings on Charles-street, and was known by the other parties to be such. 2 Livermore, 245. Owen vs. Gooch, 2 Esp. Rep. 567. M'Donough vs. Templeman, 1 Harr. & Johns. 156. Mauri vs. Heffernan, 13 Johns. Rep. 56. Pothier on Oblig. No. 448, 449. Even if the vendor does not at the time know who the purchaser is, if he afterwards [**7]  knows it, he may then elect to charge the principal, which lets off the agent. Arch. Dig. 67. 3 Starkie's Evid. 1620.

2. All joint contractors must be united. Here Athey had a partner in furnishing the bricks, who was Shoemaker; and a partner in laying the bricks, who was Barger; of course he cannot bring suit in his name alone--all must join. 1 Chitty's Plead. 6, 7. 1 Saund. 153, 291. 2 Wheaton's Selw. 186. Arch. Dig. 55, 58. Lloyd vs. Archbowle, 2 Taunt 324. Teedvs. Elworthy, 14 East, 210. Guidon vs. Robson, 2 Campb. 302. Scott vs. Godwin, 1 Bos. & Pull. 67. Dob vs. Halsey, 16 Johns. Rep. 34. Leveck vs. Shaftoe, 2 Esp. Rep. 468. But if one of the partners is dead, then the survivor may bring the suit in his name, without naming his partner. Ditchburn vs. Spracklin, 5 Esp. Rep 31. Holmes vs. D'Camp, 1 Johns. Rep. 34. 3 Starkie's Evid. 1069. A promise to one partner to pay a partnership debt, must be understood to be a promise to him as partner, and for the partnership; otherwise it would be a nudum pactum, no consideration having passed from the promissee in his individual character. With respect to a surviving partner, it is different. But the statement of the account does not [**8]  purport any thing like what is pretended, either as to the appellee's promise to pay as principal, or to his knowledge of the dissolution of the partnerships and assignments, &c. 1. There is no evidence of the assignments, especially of Barger's account. 2. There cannot be a legal assignment of choses in action. 3. And most conclusively so as to joint partners.

Moale, in reply, insisted that making the promise to Athey was presumptive evidence that the other persons, Barger and Shoemaker, were paid their proportions. Bunn vs. Morris, 3 Caine's Rep. 54. Here the defendant, with the consent of the other persons, has consented to make himself a debtor to Athey.  

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

OPINIONBY:
DORSEY 

OPINION:

 [*218]  DORSEY, J. delivered the opinion of the Court. The plaintiffs having produced in evidence the written settlement, made between Walter F. Athey and James W. Collins, this court think it was competent for the defendant to show, that the items in the settlement were partnership claims due by Collins to Athey and Barger, and to Shoemaker and Athey, and that the testimony offered [**9]  by the defendant is admissible for that purpose. An account stated is not conclusive upon the parties who made it, but may, by either of them, be contradicted, modified or explained, by other testimony than is afforded by the settlement itself. The defendant is at liberty to prove, that although upon its face it purports to contain debts due to Athey alone, yet that in truth and in fact, it was intended as a liquidation of the partnership claims of Athey and 

 [*219]  Barger, and Shoemaker and Athey, made by one partner, as the agent and for the benefit of all; and in a suit, in the name of the firm, the settlement, with such explanatory proof, might be given in evidence, to support an insimul computassent. It hence follows, that the testimony offered by the defendant was competent, as showing that this action could not be supported for the want of proper parties plaintiffs. The court below were therefore right in overruling the plaintiffs' objection. But we think they erred in refusing to permit the plaintiffs' testimony to go to the jury for the purpose for which it was offered. There is some difficulty in conjecturing upon what ground their refusal was [**10]  made. It cannot be denied that the facts offered in proof by the plaintiffs, raise some presumption of the existence of that which they wished the jury to find from them. If so, the jury, and not the court, are the judges of the weight and credit of the evidence offered, and the inferences of fact fairly deducible from it. The materiality of the testimony surely must be admitted, should the jury find from it that knowledge in the defendant, which it is offered to prove. A foundation would thereby have been laid by the plaintiffs, if they could have done so, to prove an express promise to pay by the defendant. If such proof were offered,--that the plaintiffs could recover in this action the amount of the debt due from the defendant to Shoemaker and Athey, it is unnecessary to show by reference to authorities. But we do not think that it would be incumbent on the plaintiffs to prove an express promise to pay. If the defendant, knowing of the dissolution of the partnership of Shoemaker and Athey, and the assignment of the partnership claims to Athey, accounted with him, as proved by the settlement exhibited on the trial, Athey might have sued in his own name, in [**11]  the same manner, as if there had been an express promise to pay; and under the insimul computassent might have recovered whatever amount he could have shown was allowed him in the settlement, as a debt due to Shoemaker and Athey. That an express promise to pay is not absolutely necessary to entitle the assignee of a chose in action to a suit in his own name--Vide Surtees vs. Hubbard, 4 Esp. 203. Moore & another vs. Hill, Norris's Peake, 394; and Peacock vs. Harris, 10 East. 104.

 [*220]  We think the county court erred also in their opinion on the defendant's prayer that the plaintiffs were not entitled to recover. The only item in the settlement, the recovery of which the defendant attempted to resist on the ground of its being a partnership claim, was the "balance due on six buildings, North Charles-street." As a bar to the recovery of the other two items of $ 10, and $ 39 61, the defendant has offered no testimony. These sums, with the interest thereon, which the jury were authorized to allow, would have sustained the jurisdiction of the court, and might have been recovered in this action. It is true the bill of exceptions states that [**12]  "the defendant offered evidence of his having paid, for the use of Walter F. Athey, the following sums of money, viz. $ 20, $ 30, and $ 145, by filing his account in bar." But surely the mere filing of an account in bar is not such proof of the charges it contains as would warrant the court in withdrawing the finding of the facts from the jury, and recognizing the set-off as a bar to the plaintiffs' right to recover. Nay, the mere circumstance of the court's submitting it to the jury, to say whether the account in bar should be allowed as a set-off to the plaintiffs' claim, in the absence of all proof to support it, would be error, for which their judgment would be reversed.
We concur with the county court in their first opinion, and dissent from their second and third opinions, as stated in the bill of exceptions, and therefore reverse their judgment, and award a procedendo.
JUDGMENT REVERSED, &c.  

25 of 33 DOCUMENTS 

HENCK vs. TODHUNTER, et al.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

7 H. & J. 275; 1826 Md. LEXIS 37 

June, 1826, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court. Assumpsit on a promissory note for $ 1000, drawn by the defendant below, (now appellant,) on the 5th of January 1820, in favour of Conrad Schultz, or order, payable two years after date, and by Schultz endorsed to the plaintiffs, (the appellees.) The writ issued on the 15th of February 1822, returnable on the fourth Monday in March following. At the return day of the writ, the defendant, (having been arrested,) appeared in court by William Frick his attorney; and on motion of the plaintiffs, the defendant was ruled to plead to the plaintiffs' declaration, which was filed at the time of issuing the writ. The defendant imparled until the next term to answer, and at that term he further imparled to the succeeding term for the same purpose. At which last mentioned term, viz. the fourth Monday in March 1823, the defendant again appeared by his said attorney, and pleaded non assumpsit; after which, at the same term, on the prayer of the defendant, by his attorney aforesaid, leave was granted to him to withdraw his plea, and it was accordingly withdrawn. On motion of the plaintiffs, it was then ruled by the court that the defendant answer anew to the declaration.  [**2]  Whereupon, on motion of the said William Frick, attorney of the defendant, it was ordered by the court that the appearance of said Frick, as said attorney, in the plea aforesaid, be stricken out, and the same was accordingly done. And the defendant, although solemnly called, did not come, &c. but made default; and on the prayer of the plaintiffs, the court assessed the damages of the plaintiffs to the sum of $ 1080 83, and rendered judgment in favour of the plaintiffs against the defendant, for the damages laid in the declaration, and costs of suit, with a memorandum that the damages were to be released on payment of the above sum, with interest, &c. From that judgment the defendant appealed to this court.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

It is not the practice in this state to require a warrant of attorney to counsel to appear, and the English rules of practice upon that subject are not applicable here.

A party may here appear in propria persona, or by attorney, and when the appearance of an attorney is entered on record, it is considered as done by the authority of the party; and whatever is done in the progress of the cause in which such appearance is entered, is esteemed as done by and as binding on him. Whether the attorney is or is not faithful to his trust, is a matter between him and the party.

Where, therefore, an attorney on the record applies for permission to have his appearance stricken out, the presumption is that he does it by the authority of his client; and the client is not thereby entitled to a continuance of his case, but it is to be proceeded in as if the appearance had not been stricken out.

Where the inferior court had permitted a plea to be stricken out, and it was ruled that the defendant answer anew, and then, at the instance of the defendant's counsel, the appearance of the counsel was stricken out, and no new plea was put in--Held, by the appellate court, that a judgment by default was properly entered against the defendant, as it was to be presumed that the leave to withdraw the plea was on condition that the defendant should plead anew, without delay, and that the rule then laid upon him to plead anew, was, virtually, a rule to plead instanter.  

COUNSEL:
Mayer, for the Appellant, contended--1. That no court is authorised to order the attorney's appearance to be struck out, unless with the consent of the party for whom he appeared. He cited 1 Bac. Ab. tit. Attorney, (C) 295. Anon 1 Siderf. 31, (8.) Latuck ss. Pasherante; 1 Salk. 86. 1 Sellon's Pr. 16, 17. Bradley vs. Breach, 2 Keble, 275.

2. If the court had authority to order the appearance of the attorney to be stricken out, the defendant should have [**3]  been served with a rule either to employ new counsel, or to appear in proper person.

3. No attorney is permitted to withdraw himself from the action without the consent of his client. If this is permitted, the party should have an opportunity of employing new counsel. Where the party appears by counsel, and the counsel afterwards withdraws from the cause, the party is not presumed to be in court after such withdrawal. Darnall vs. Harrison, 1 Harr. & Johns. 137.

4. No proper rule was laid for further plea after the withdrawal of the plea put in--the rule not assigning a time for putting in the new plea. The rule was radically defective, and is to be considered as no rule at all. 1 Sellon's Pr. 300. 2 Harr. Ent. 99. Tidd's Appendix, 193. Lill. Ent. 473.

5. The judgment by default was not authorised without a warrant of attorney appearing in the proceedings. 1 Sellon's Pr. 17. Jacobs' L. D. tit. Judgment, 559.

Mitchell, for the Appellees. 1. If the appellant's counsel is right, then, wherever the defendant and his attorney combine, he may withdraw himself from the cause at the trial term, and by that means have a new rule laid on him to employ new counsel, by which [**4]  the trial would be delayed, &c.

2. A warrant of attorney is not necessary in this state. It is only a stamp regulation which makes it necessary in England. It is not necessary that it should be entered on record. 1 Com. Dig. tit. Amendment, (E 2,) 454. M'Mechen vs. The Mayor, &c. 2 Harr. & Johns. 41.

3. The defendant is the person who appears, and is discharged from the custody of the sheriff. He is presumed to be always in court, and there is nothing to prevent his attorney from withdrawing himself from the action. Where an attorney takes upon himself to appear, &c. the judgment is not to be set aside. The plaintiff, who is in no default, is not to sufier. 1 Bac. Ab. tit. Attorney, (C,) 296. The client's remedy is against his attorney, if he has deserted his cause without leave, or on improper grounds.  

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

OPINIONBY:
BUCHANAN 

OPINION:

 [*277]  BUCHANAN, Ch. J. delivered the opinion of the court. It is not the practice in this state to require a warrant of attorney 

 [*278]  to authorize the appearance of a defendant by attorney; the rules of practice, therefore, in England, in [**5]  relation to that subject, are not applicable to the proceedings of the courts of this state.
But the party may, by the law and practice of the courts of this state, appear either in propria persona, or by attorney; and whenever the appearance of an attorney is entered on the record, it is always considered that it is by the authority of the party; and whatever is done in the progress of the cause by such attorney, is considered as done by the party, and binding upon him. And whether the attorney is faithful to his trust or not, is a matter between him and the party, his client, to whom he is responsible for the faithful discharge of his duty. When, therefore, an attorney on the record applies for permission to cause his name to be stricken out, it is presumed to be done at the instance and by the authority of the party for whom his appearance has been entered. But it will never be permitted to a party, or his attorney, to obtain a continuance of a cause beyond the time allowed him by law, by striking out the attorney's appearance at the term at which the cause stands for trial; otherwise, by collusion between client and attorney, the trial of a cause might be delayed without limit.  [**6]  Hence, though the court will, on application, permit the attorney's name to be stricken out, considering him as acting on that very application as the attorney, and at the instance of the party, yet it will not be done to the prejudice of the other party, and the cause will be made to progress as if the appearance had not been stricken out.
In this case the cause stood regularly for trial, and it must be understood that the permission given by the court to the defendant's counsel to withdraw his plea, was only to give way to another plea without delay, and that the rule then laid to plead over was virtually a rule to plead instanter, otherwise it would have worked a continuance for a cause not justified by law.
JUDGMENT AFFIRMED.  

26 of 33 DOCUMENTS 

NEALE vs. CLAUTICE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

7 H. & J. 372; 1826 Md. LEXIS 44 

June, 1826, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court. Action of trespass. The writ was that the defendant, (now appellee,) answer unto the plaintiff, (the appellant,) "in a plea of trespass, &c." And by the declaration the plaintiff complained, that the defendant on the 10th of June 1820, at, &c. with force and arms, seized, took and detained, the goods and chattels to wit, &c. of the plaintiff, then and there found, and being of a large value, to wit, of the value of, &c. and carried away the same, and converted and disposed thereof to his own use, and other wrongs to the plaintiff then and there did, against the peace, government and dignity of the state, &c. and to the damage of the plaintiff of, &c. The defendant pleaded two pleas. 1. The general issue plea, which was afterwards struck out by consent of the parties. 2. "And for further plea in this behalf the defendant, by leave of the court here first had and obtained, according to the form of the statute in such case made and provided, says, that the plaintiff his action aforesaid thereof against him to have or maintain ought not, because he says, that a certain John G. Neale, on the tenth day of June, in the year eighteen hundred and twenty,  [**2]  and for a long space of time then last past, and from thence until, and at the said time, when, &c. held and enjoyed a certain messuage or tenement, situate and being at the county aforesaid, as tenant thereof, to the defendant, under and by virtue of a certain demise thereof, before then made to the said John G. Neale, upon which demise a certain yearly rent, to wit, the rent or sum of one hundred and fifty dollars, per annum, was reserved and made payable by the said John to the defendant, in manner following, to wit, fifty dollars in advance; fifty dollars in six months, and fifty dollars in twelve months, in each and every year during the continuance of said demise; and the defendant in fact says, that just before the said time, when, and so forth, to wit, on the thirteenth day of May, in the year eighteen hundred and twenty, a large sum of money, to wit, the sum of one hundred dollars of the rent aforesaid, for a portion of said term, ending on the day and year last aforesaid, became and was due, owing and payable, from the said John G. Neale to the defendant, and from thence until and at the said time, when, &c. became, remained and continued in arrear and unpaid; and the defendant [**3]  avers, that just before the said time, when, &c. that is to say, after the said rent became due and payable, and when the same was actually due and in arrear and unpaid, and within thirty days next before the said time, when, &c. the said John G. fraudulently and clandestinely carried off the said premises, so held and enjoyed by him the said John G. as such tenant thereof as aforesaid, the said goods and chattels in the said declaration mentioned, being the proper goods and chattels of him the said John G. to prevent the defendant from distraining the same, for the rent so before and at the time of the said removal, actually due in arrear and unpaid, and for that purpose conveyed the said goods and chattels to the said place in which, &c. for which reason, and because the said rent still remained in arrear and unpaid, and because the said goods and chattels, which had been so fraudulently and clandestinely removed and carried away by the said John G. as aforesaid, after the said rent was due and in arrear, still remained in the said place in which, &c. to which the same had been removed, the defendant in his own right, afterwards, and when the said rent so remained due, in arrear [**4]  and unpaid as aforesaid, and within thirty days next after the said furniture, goods and chattels, were and had so been fraudulently and clandestinely removed and carried away, that is to say, at the said time when, &c. entered into the said place in which, &c. in the said declaration mentioned, in order to seize and take the said goods and chattels, so being there as aforesaid, as a distress for the said arrears of rent, so due and owing to the defendant as aforesaid, and thereupon, at the said time, when, &c. and within thirty days next after the said goods and chattels in the said declaration mentioned, had been and were so fraudulently and clandestinely removed away and carried off as aforesaid, in the said place in which, &c. take and seize the said goods and chattels so there found, as a distress for the said arrear of rent, and did impound the same at a small and convenient distance from the said place in which, &c. and did thereupon give due notice of such distress, and of the cause of such taking, and of the said place where the said goods and chattels were impounded unto the said John G. and did keep and detain the said parcel of said goods and chattels under the said distress,  [**5]  for the space of five days next after the taking and carrying away the same as aforesaid, in order to give the plaintiff an opportunity to replevy the same, according to the form of the statute in such case made and provided; and the said John G. not having replevied the said goods and chattels, within the said space of five days, the defendant in his own right afterwards, and after the expiration of said five days, to wit, on the first day of July, in the year aforesaid, caused the same to be in due manner appraised, by two sworn appraisers, according to the form of the statute in such case made and provided, and after such appraisement, the defendant sold the same, and applied the proceeds of said sale in satisfaction of said rent, and the charges of the distress and appraisement aforesaid, as he lawfully might, for the cause aforesaid, inasmuch as the plaintiff had not replevied the said goods and chattels, or paid the said arrear of rent, together with the costs and charges of said distress, and appraisement aforesaid; and this he is ready to verify: Wherefore he prays judgment if the plaintiff, his action aforesaid thereof to have or maintain ought, and so forth." To this last [**6]  plea the plaintiff replied as follows: "And the plaintiff, as to the said plea of the defendant, by him secondly above pleaded, as to the said several trespasses in that plea mentioned, and therein attempted to be justified, saith, that the plaintiff, by reason of any thing mentioned by the defendant in that plea alleged, ought not to be barred from having and maintaining his aforesaid action; because he saith, that the defendant, at the said time, when, &c. of his own wrong, and without the cause by him in his second plea alleged, committed the said several trespasses in that plea mentioned, in manner and form as the plaintiff hath above in his declaration complained against him, the defendant; and this he, the plaintiff, prays may be inquired of by the country, and so forth." The defendant demurred specially to the replication, and assigned the following causes of demurrer in law to the said replication, that is to say, "that the same is double, inasmuch as the said replication tends to put in issue several various and distinct matters, when the same ought to have put one single matter in issue only, and also, that he attempts to put in issue by said replication, all the several [**7]  matters and things in the said plea contained, whereas he should have traversed one single matter whereon a proper issue might be joined; in this, that the defendant states in his plea the following distinct facts, to wit," &c. "And the replication tends to put in issue all the various and distinct matters aforesaid, when the same ought to have put one single matter in issue only. And that the said replication is uncertain, not issuable and wants form," &c. The plaintiff joined in demurrer. The county court sustained the demurrer, and rendered judgment for the defendant. From which judgment the plaintiff appealed to this court.  

DISPOSITION:
JUDGMENT REVERSED. PROCEDENDO AWARDED.  

HEADNOTES:

A general demurrer to a plea confesses all the facts which are well pleaded.

A plea in trespass is bad on demurrer that does not cover the whole trespass laid in the declaration, although it need not answer matter stated in aggravation of damages.

In an action of trespass for taking personal chattels, the declaration must state them to be the plaintiff's at the time of the taking, or the omission will be fatal even after verdict.

In such an action of trespass, where the declaration contained the averment of property in the plaintiff at the time of the taking, a plea, justifying the taking as a distress for rent due the defendant by a third person, and that the chattels were on the demised premises when the rent accrued, and were fraudulently removed, and afterwards pursued and taken within thirty days, is insufficient, because it does not deny that they were, at the time of the taking, the property of the plaintiff. If such a plea averred them to belong to the tenant when taken, the plea would seem to be good, except as to form.

In such an action a plea, that the property in the chattels was in the defendant, or in a third person, would be bad on special demurrer, because it would amount to the general issue.

Where goods are fraudulently removed by a tenant to avoid his rent, and afterwards are sold by him to a bona fide purchaser, the sale is valid under the statute 11 Geo. II, ch. 19.

Goods of a third person cannot be taken for rent, except they are found, at the time of the distress, on the premises.

The general replication de injuria sua propria, &c. is only proper where matter of excuse is pleaded in the defendant's plea, and not where he relies upon title.

Where the judgment of the inferior court against the plaintiff, on demurrer to the pleadings, was reversed, a procedendo was awarded.  

COUNSEL:
Raymond, for the Appellant, contended, that there was no fault in the pleadings on the part of the plaintiff. That if the pleadings were defective, it was the fault of the defendant, and not of the plaintiff. He cited 1 Chitty's Plead. 512. Robinson vs. Rayley, 1 Burr. 316.

Meredith, for the Appellee. 1. The writ is not in the legal and accustomed forms of such writs in trespass. It is general that the defendant answer unto the plaintiff in a plea of trespass, &c. without stating what the trespass consisted [**8]  of.

2. The facts stated in the defendant's plea were essential to his defence, but the plaintiff did not chuse to select any one of the acts, but took issue on the whole. Any one of the facts alleged in the plea would, if proved, defeat the plaintiff's action. The replication should have selected some one of the facts upon which the issue should be tried, and not deny the whole, and put them all in issue. Crogate's case, 8 Coke, 67. Cockerill vs. Armstrong, Wille's Rep. 99. Bell vs. Wardell, Ib. 202. The case of Robinson vs. Rayley, 1 Burr. 316, has been doubted to be good law by many decisions. Jones vs. Kitchim, 1 Bos. & Pull. 78, (Arg. of Sergt. Marshall.)

3. If the plea is double, yet it could only be taken advantage of by special demurrer. Instead of which the plaintiff replied putting in issue every fact stated in the plea. Arch. Plead. 193. 6 Com. Dig. tit. Pleader, 163, 164, (New Ed.) 1 Chitty's Plead. 646, 647. Stephen's Plead. 163, 164. If the plea is bad for duplicity, it must be bad by putting in issue more than one defence. The replication then is general to two defences.

4. The replication is insufficient upon other grounds. Advantage may be taken of a [**9]  replication on special demurrer, though the cause is not stated in the causes of demurrer. Where de injuria is improperly replied, the defendant may demur generally, but the defect will be aided after verdict. 1 Chitty's Plead. 584. Collins vs. Walker, Sir T. Ray. 50. Banks vs. Parker, Hob. 76. Fursden vs. Weeks, 3 Lev. 65. The replication de injuria, &c. is only allowed in actions of trespass for personal injuries. 6 Com. Dig. tit. Pleader, (F. 18.) Lytle vs. Lee & Ruggles, 5 Johns. Rep. 112. Hyat vs. Wood, 4 Johns. Rep. 150. Plumb vs. M'Crea, 12 Johns. Rep. 491. Taylor vs. Markham, Yelv. 158. The replication puts in issue the fact of title to the premises, as well as to the property. Where the question of title is involved, the plaintiff is always precluded from replying generally. 2 Roll. 694. A general replication is admitted only where the defendant insists upon a matter by way of excuse. Lytle vs. Lee & Ruggles, 5 Johns. Rep. 113, 114. Cooper vs. Monke, Wille's Rep. 52. 1 Chitty's Plead. 583, 584.

Raymond, in reply. The writ is correct for all necessary purposes. It is not necessary in this state to set out in the writ the particular trespasses complained of, bail being [**10]  required here by statute. In England the defendant must be served with the process, showing what is complained of, so as to demand bail. Tidd's Pr. 144.  

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

OPINIONBY:
EARLE 

OPINION:

 [*378]  EARLE, J. delivered the opinion of the Court. The attention of the court is called to the pleadings of this case. It is an action of trespass for taking the personal goods of the plaintiff. To the declaration, which is in common form, the defendant pleaded specially; and he also pleaded the general issue plea, which by consent was withdrawn from the case. The special plea purports to be a justification of the taking, for a distress for rent, not due to the defendant by the plaintiff, but from his tenant John G. Neale, who is charged with fraudulently removing the distrained property, being his own proper goods and chattels, from off the demised premises, to prevent the distress, to the place where, &c. to which place they were followed within thirty days, and seized and sold by the defendant for the payment of his rent. To this plea the plaintiff having replied, de injuria sua propria absque tali causa, the defendant demurred [**11]  specially, and assigned for cause of demurrer the duplicity of the replication, inasmuch as it tended to put in issue various and distinct matters, when the same ought to have put one single matter in issue only, and attempted to put in issue all the several matters and things in the plea contained, whereas it should have traversed one single matter, whereon a proper issue might have been joined.
The legal sufficiency of the replication furnished the principal ground of the arguments of the counsel, although the plea was also adverted to, as being defective. If it is so in form the fault is cured by the pleading over of the replication; but if it is substantially incorrect, the fault must determine the case against the defendant, as it is the first to be found in the pleadings. By way of testing its soundness, the court have inquired whether it is a good plea on general demurrer? and their reflections have brought them to the conclusion that it is not. When applied to a plea, a general demurrer confesses all its well 

 [*379]  pleaded facts; and if all the facts contained in this plea are admitted to be true, the plaintiff we think must nevertheless prevail, because the gist or [**12]  ground of his action, as set forth in his declaration, is not thereby answered. A plea in trespass is bad on demurrer, that does not cover the whole trespass as laid in the declaration, although it need not answer matter stated in aggravation of damages. Taylor vs. Cole, 3 Term. R. 297, per Buller, J. The plaintiff here has alleged in his declaration, that the goods and chattels mentioned therein, at the time of the taking of them by the defendant, were his goods and chattels, and if he had omitted the averment, the omission would have been fatal even after verdict, the objection being a want of title, and not a title defectively stated. 1 Chitty's Plead. 366, and the authorities there cited. This demonstrates the importance and character of this fact stated in the declaration, and there is no answer given to it in the plea, either by denying it, or by confessing and justifying it. The plea may be said to assert the goods in question, to be the proper goods and chattels of the defendant's tenant, when they were fraudulently removed by him from the demised premises; but it is silent as to their being the goods and chattels of any particular person at the [**13]  time of the taking in the place where, &c. If it were admitted that they were the proper goods and chattels of the tenant, when they were removed by him from the premises, it would not thence follow, that they were his property many days after, when they were taken from the plaintiff, in the name of a distress for rent due from the tenant. The plaintiff might, in the meantime, have purchased them bona fide of the tenant; and by the statute of 11 Geo. II, Ch. 19, s 1, 2, the sale would have been protected. 3 Chitty's Plead. 551, (in the note.) The defendant should have denied the property of the plaintiff, at the time of taking, and as he has omitted to do this, the declaration is not covered by the plea. The general issue plea would have been a denial of the property of the plaintiff in the goods at the time of the taking, and imposed on him the necessity of proving it, or showing his right to sue. The defendant might also have put the same fact in issue, by a plea of property in himself, or his tenant, at the time of the taking, if he had thought proper to hazard a plea, which would have been bad on special demurrer, 

 [*380]  because it amounted to the general [**14]  issue plea. In the same way he might have added to his plea before us, that when he seized the goods in the place where, &c. they were the proper goods and chattels of his tenant, and not the plaintiff's, which perhaps would have made of it a good plea, except as to form. Neither of those modes of negation has he, however, adopted; and his plea used as justification is not suited to the case, and does not justify the act complained of. It would have been a suitable plea, if the tenant had been the plaintiff, but will not answer the defendant's purpose, as the action is brought by a stranger. To justify, he might well confess by his plea the goods and chattels carried off the premises to be the property of his tenant, because he has a right to follow them, if they are fraudulently removed to prevent his distress; while a similar admission in the case of a stranger, would be to concede himself to be liable to his action. For the goods of a third person cannot be taken for rent in any place, except on the leased premises; and to admit by plea the taking as a distress for rent of the goods of such a person in alio loco, is little short of saying that they are not liable to the distress [**15]  insisted on; and a justification following such an admission, could be of no avail.
So much having been said of the plea, it seems unnecessary for the court to speak of the replication. As its invalidity, however, was a point more than any other insisted on, we will briefly give our opinion in relation to it.
Without attending to the particular causes of demurrer pointed out, it appears to us that the replication is not sustainable in this case; de injuria sua propria absque tali causa, is a plea often resorted to in practice, but where it may be legitimately used, must be determined by a reference to Crogate's Case, 8 Co. Rep. 66. This case is the foundation of all subsequent decisions on this question, and is an authority universally acknowledged. Adjudications of later date are little else than interpretations, given by successive judges, of Crogate's Case, as applicable or not to the subjects which have come under their consideration. In the second resolution of the case, Lord Coke says, "the general plea de injuria sua propria, &c. is properly where the defendant's plea doth consist merely upon matter of excuse, and no matter of interest whatsoever;"  [**16]  and 

 [*381]  this makes the use of this general replication to depend on the matter of the defendant's plea. If matter of excuse is pleaded, the general replication is an appropriate plea; but if matter of interest is insisted on, a special reply is necessary. This distinction has been observed and enforced by the most modern decisions on this subject. Such are the cases of Cooper vs. Monke, and Cockerill vs. Armstrong in Willes's Rep. 52 & 100; the case of Jones vs. Kitchim, 1 Bos. & P. 76, and Lytle vs. Lee and Ruggles, 5 Johns. 112; and such the law in White vs. Stubby, 3 Saund. 295, (note 1.) All these authorities are decided on the ground that the general replication, de injuria sua propria absque tali causa, is bad, when the defendant insists on a right, as P. Clautice does in this case, and is good only when he pleads matter of excuse.
JUDGMENT REVERSED.
Raymond then moved the court to order a writ of procedendo, or special mandate, to the court below, directing them to proceed in the cause, and to award an inquiry as to the damages to be assessed to the plaintiff, &c. He referred [**17]  to Briscoe vs. Ward, 1 H. & J. 165. Davis vs. Wilson, 2 H. & J. 345. Davis' vs. Benson, 6 H. & J. 272. 2 Sellon's Pr. 399, 400. Vicars vs. Haydon, 2 Cowper 843. Tidd's Pr. 687. Foxwist vs. Tremaine, 2 Wm. Saund. 210, 211, (notes 2, 3.) Fox vs. Smith, 2 Wils. 267. Bowen vs. Shapcott, 1 East 542, 544. Owen vs. Saunders, Colle's P. Cas. 73. The Queen vs. Ford, Colle's P. Cas. 336.
PROCEDENDO AWARDED.  

27 of 33 DOCUMENTS 

ELLIOTT vs. GIESE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

7 H. & J. 457; 1826 Md. LEXIS 52 

June, 1826, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court. This was an action of assumpsit. The declaration contained two counts. 1. That one Joseph Galbraith, on the 5th of November 1819, was indebted to the plaintiff, (the appellant,) in $ 105, for money paid, laid out and expended, by the plaintiff, to and for the use of the said Galbraith, and at his special instance and request; and being so indebted he promised, &c. and afterwards, on the 6th of November 1819, in consideration of the premises, and to secure the payment of the said sum of money by the said Galbraith to the plaintiff, the defendant, (the appellee,) upon himself assumed, and did then and there guarantee to the plaintiff the payment of the said sum of $ 105, so due by the said Galbraith to the plaintiff, in case the said Galbraith should fail to pay the same. Averment, that Galbraith hath not paid, &c. of which the defendant had notice, &c. By reason whereof the defendant became liable, &c. and being so liable undertook, &c. 2. A similar count for another sum of $ 105, due from Galbraith to the plaintiff, for meat, drink, &c. The defendant pleaded non assumpsit, and issue was joined.

At the trial the plaintiff offered in evidence [**2]  the following letter from the defendant to the plaintiff, and which was admitted to be in the defendant's handwriting: "Dear Sir, Agreeable to promise I was to call on you this evening; but being too unwell with the head-ache, I must beg to be excused; yet as the meeting was to be for the purpose of guaranteeing unto you a debt due you by my brother-in-law, Jos. Galbraith, amounting to one hundred and five dollars, I hereby guarantee the said sum. I remain yours, &c.

L. W. H. Giese.

Guarantee for $ 105. Philadelphia, 6th Novr. 1819." Addressed to "Mr. Wm. Elliott, Philad. 43, N. 3d."

The defendant then prayed the opinion and direction of the court to the jury, that the said writing created no liability on the part of the defendant, and that for that reason the plaintiff was not entitled to recover. And the Court [Archer, Ch. J. and Hanson A. J.] being of that opinion, so directed the jury. The plaintiff excepted. Verdict and judgment for the defendant, and the plaintiff appealed to this court.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

The defendant signed, and addressed to the plaintiff, the following note. "Agreeable to promise I was to call on you this evening, but being too unwell, &c. I must beg to be excused; yet as the meeting was to be for the purpose of guaranteeing unto you a debt due you by my brother-in-law, J. G, amounting to, &c. I hereby guarantee the said sum."--Held, that the consideration did not sufficiently appear on the face of the instrument, under the statute of frauds 29 Car. II, ch. 3, s. 4, and that it was nudum pactum, and void.  

COUNSEL:
R. Johnson, for the Appellant, cited Russell vs. Moseley, 3 Brod. & Bingh. 211, (7 Serg. & Lowb. 414.)

R. B. Magruder and C. C. Harper, for the [**3]  Appellee, were stopped by the court.  

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

OPINIONBY:
BUCHANAN 

OPINION:

 [*458]  BUCHANAN, Ch. J. delivered the opinion of the Court. This is clearly an undertaking to answer for the debt of another, and though, being in writing, and signed by the defendant, the statute of frauds is so far gratified; yet in the absence of any superadded consideration moving between the plaintiff and the defendant, either of forbearance or otherwise, it is nudum pactum, and void.
The declaration avers the consideration to be a preexisting debt due from Joseph Galbraith to the plaintiff, and sets out no other; and the instrument of writing itself, on which the suit was brought, is, upon the face of it, a naked and express guarantee of that debt, without any apparent new consideration moving between the parties to that guarantee.
The case of Wyman vs. Gray decided this term, 7 H. & J. 409, is decisive of this case.
JUDGMENT AFFIRMED.  

28 of 33 DOCUMENTS 

GIESE vs. THOMAS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

7 H. & J. 458; 1826 Md. LEXIS 53 

June, 1826, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court. Action of replevin. Property in the defendant pleaded. General replication, and issue joined. The plaintiff, (the appellant,) produced as a witness Thomas Evans, for the purpose of proving, that on the 3d of October 1821, he Evans, and one Coppack, sold the lumber replevied to the plaintiff, who paid them for it; that at a subsequent period a fieri facias, under a magistrate's judgment, rendered in favour of a certain John Mulliken against said Evans, was levied upon it by Samuel Merryman, constable; that the plaintiff gave notice to Merryman before the levy, that the property had been sold to him, the plaintiff; that Merryman nevertheless proceeded to sell it at public sale, and the defendant became the purchaser, who also had received notice that the fieri facias was levied for the purpose of making the sum necessary to satisfy the judgment so obtained against Evans. To the competency of the witness for this purpose, the defendant objected. And the Court, [Hanson and Ward, A. J.] being divided in opinion, he was rejected. The plaintiff excepted; and the verdict and judgment being against him, he appealed to this court.  

DISPOSITION:
JUDGMENT AFFIRMED.  [**2]  

HEADNOTES:

In an action of replevin the former owner of the goods replevied, is not a competent witness for the plaintiff, to prove that he had previously sold them to the plaintiff and that they had subsequently been sold under an execution upon a judgment of a third person, and purchased at such sale by the defendant; as no parol evidence could be given of such judgment and execution, no foundation being first laid for it.

But if the judgment and sale to the defendant had been first properly proved, the former owner would have been a competent witness to prove a previous sale by him for a valuable consideration to the plaintiff.

A vendor is not generally a competent witness to prove title in his vendee against a stranger, claiming adversely, as he is interested by reason of his implied warranty in supporting the title of the vendee. 

COUNSEL:
R. B. Magruder, for the Appellant, contended, 1. That Evans was not interested, and, therefore, that the court erred in rejecting his testimony upon the ground of his incompetency. He cited Fisher vs. Beall's Adm'rs. 1 Harr. & Johns. 31.

2. That if he was interested, his interest was equiponderant, and, therefore, he ought to have been admitted as a witness. Norris's Peake, 242.

3. That he was a witness from necessity.

Meredith, for the Appellee, cited Heermance vs. Vernoy, 6 Johns. Rep. 5; and Blasdale vs. Babcock, 1 Johns. Rep. 517.  

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

OPINIONBY:
BUCHANAN 

OPINION:

 [*460]  BUCHANAN, Ch. J. delivered the opinion of the Court It appears that issue was taken in this case, on a plea of property in the defendant, and it comes up on a rejection by the court below of the evidence offered at the trial on the part of the plaintiff.
There is no doubt the plaintiff might have shown that the property in question was sold by a constable to the defendant, in virtue of a fieri facias sued out on a judgment rendered by a magistrate against the witness Evans, in order to show in what manner the property [**3]  got into the possession of the defendant, and to let in the further evidence, that it had been previously sold by Evans and Coppack to the plaintiff, for a valuable consideration, which Evans might have been called to prove, as in that state of things he could have had no interest opposed to his competency. For if the property, at the time of the supposed sale to the plaintiff, was in truth bound by the delivery of the fieri facias into the hands of the proper officer, Evans would have been answerable over to the plaintiff on the implied warranty of title, and consequently, in proving the sale to the plaintiff, he would have been swearing against his interest. And if on the contrary, it was not bound, the seizure and sale by the constable to the defendant, could not have had the effect to subject Evans to any liability to the plaintiff, on account of any implied warranty; but the remedy of the plaintiff would have been that which he is now seeking against this defendant; or an action against the constable for the wrongful taking. And in neither case would Evans have any interest of his own to subserve by proving the previous sale by Coppack, and himself,  [**4]  to the plaintiff.
But it certainly was not competent to the plaintiff to give parol evidence of the judgment and execution against Evans, no foundation being previously laid for it. They should themselves, if in existence, have been produced; and the testimony of Evans, in relation to that matter, was clearly inadmissible.
Stripped then of all evidence of a sale to the defendant under an execution on a judgment against Evans, the offer to prove 

 [*461]  by him a sale of the property in question by Coppack, and himself, to the plaintiff, stands as the naked case of a vendor coming to sustain, by his own testimony, the title of his vendee, against a stranger claiming adversely, which cannot be permitted.
Evans is clearly interested on account of his implied warranty, in supporting the plaintiff's action, and his testimony was properly rejected.
JUDGMENT AFFIRMED.  

29 of 33 DOCUMENTS 

CROMWELL, et al. vs. OWINGS 

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

7 H. & J. 55; 1826 Md. LEXIS 14 

June, 1826, Decided 

PRIOR HISTORY:
 [**1]   FIERI FACIAS issued on a decree rendered in this court at June term 1823, returnable at December term 1823. The fieri facias was laid on certain tracts of land, and goods and chattels; and the goods and chattels were replevied and taken out of the possession of the sheriff, under a writ of replevin issued out of Baltimore county court, at the instance of Jacob Holderman, directed to some one of the coroners of the county. The sheriff returned the writ of fieri facias laid as per schedule, and the goods and chattels replevied. Motion on the part of the plaintiffs for a writ of venditioni exponas for the sale as well of the personal as of the real estate.  

DISPOSITION:
MOTION SUSTAINED, AND VENDITIONI EXPONAS ORDERED.  

HEADNOTES:

Where real and personal property were taken under a fi. fa. and the sheriff returned the writ "laid as per schedule, and the goods and chattels replevied," and the replevin was by a third party--On motion a venditioni exponas was issued to the sheriff for the sale of the personal as well as the real estate.

Goods taken under an execution cannot be replevied out of the officer's hands, either by a stranger, or by the defendant in the judgment, and this whether such goods, when taken, were in the possession of the defendant or not. In either case they are considered as in custodia legis.

After goods are sold under an execution, and are in the hands of the purchaser, they may be replevied by the true owner, and an action for damages maintained by him against the officer.

Replevin in this state is the usual remedy to enable an owner to recover personal property from the possession of another, whether that possession be tortious or not; but to this there is an exception as to such goods as are in the custody of the law, or as have been taken by replevin from the owner by the party in possession.

At common law it is a contempt of the court issuing an execution, to replevy property taken under it.  

COUNSEL:
Taney and Mayer, for the motion, contended, that goods taken in execution were in the custody of the law, and could not be replevied out of the hands of the sheriff who seized them. They cited Pearson vs. Roberts, Willes' Rep. 672, (note b.) Ladd vs. North, 2 Mass. Rep. 514. Flagg vs. Tyler, 3 Mass. Rep. 304. Thompson vs. Button, 14 Johns. Rep. 86. Gilb. on Ex'ns. 22. 1 Sellon's Pr. 528. Beatty vs. Chapline, 2 Harr. & Johns. 7. Eaton vs. Southy, Willes' Rep. 136. Alexander vs.  [**2]  Mahon, 11 Johns. Rep. 185, 186. Palgrave vs. Windham, 1 Stra. 212, 214. Buxton vs. Home, 1 Shower's Rep. 174. Farr vs. Newman, 4 T. R. 640, 651. 4 Hall's L. J. 484. Turner vs. Fendall, 1 Cranch, 117. Ball vs. Ryers, 3 Caine's Rep. 84. Sturtevant vs. Ballard, 9 Johns. Rep. 337. Ilsley vs. Stubbs, 5 Mass. Rep. 280; and Gardner vs. Campbell, 15 Johns. Rep. 401.

R. Johnson, against the motion, cited 6 Com. Dig. tit. Replevin, (A) 224. Pangburn vs. Partridge, 7 Johns. Rep. 140. Clark vs. Skinner, 20 Johns. Rep. 465, and 6 Bac. Ab. tit. Replevin & Avowry, (C) 56.

Curia adv. vult.  

JUDGES:
This motion was argued before BUCHANAN, Ch. J. and EARLE, MARTIN, STEPHEN, ARCHER, and DORSEY, J.  

OPINIONBY:
BUCHANAN 

OPINION:

 [*56]  BUCHANAN, Ch. J. at this term, delivered the opinion of the court. The main question directly presented by this motion is, whether goods taken by a sheriff in virtue of a writ of fieri facias, out of the possession of the defendant in the execution, 

 [*57]  can be replevied by a stranger to the judgment and execution. It is a question of considerable importance to the citizens of the state, and now for the first time brought before this court for consideration, and [**3]  it assumes a character the more imposing, from the circumstance that different opinions are understood to have been entertained by professional gentlemen, and different decisions made in some of the judicial districts.
It is conceded, and indeed it seems to have been too long and too well settled to admit of doubt, that goods taken by the proper officer, under a writ of fieri facias, out of the possession of the defendant in execution, cannot be replevied from the officer by such original defendant. And why not? Because, in the language of all the most approved writers on that branch of the law, and denied by none, goods taken in execution are in the custody of the law. So it is laid down in Co. Litt. 47, a, and in other books, that goods taken in execution, and goods distrained damage feasant, being in the custody and under the protection of the law, cannot be taken for rent in arrear. And it would be strange if it were otherwise, for it would be absurd and repugnant ex vi termini to say, that goods in the custody of the law, could legally be taken out of the custody of the law.
The instances last put of the protection given by the law to that, which is in its [**4]  custody, are stated, and serve to show its consistency, and that the protection extended to goods in its custody, is not a protection against the writ of replevin alone, of goods taken in execution, but a shield thrown over whatever it takes into its custody. And the rule that goods taken in execution are held to be in the custody of the law, is in strict accordance with sound policy and good sense, with which the principles of the law, when well understood, and properly applied, are seldom if ever found to be at variance.
If a different rule prevailed, and debtors were permitted to defeat the ends of the law, by replevying their goods from the proper officer whenever they should be taken in execution, it would be useless to institute suits, and prosecute them to final judgment. But it is supposed that a distinction may be taken between a debtor, and a stranger, whose goods found in the possession of such debtor are taken in execution; on the general 

 [*58]  ground, that replevin will lie by any rightful owner, for chattels wrongfully taken by another. And in this case it is said, that as the sheriff was only authorized to take the property of the debtor, against whom the judgment [**5]  was rendered, he was a wrong-doer in taking the property of the plaintiff in the replevin, and that the action was properly conceived.
It is a general principle, that the owner of chattels may replevy them from any person who has unlawful possession of them; but there are exceptions to this general rule, such as where they are in the custody of the law, or have been taken from him by replevin by the party in possession.
In 6 Com. Dig. tit. Replevin, (A) 224, it is said, that "replevin lies for all goods and chattels unlawfully taken;" which is thus qualified in the next page 225, (D)--"But a replevin does not lie for goods taken in execution."
In this state the action of replevin has nearly taken place of trespass and trover, and is the usual, and almost universal remedy resorted to by those claiming a right to goods in the possession of another, when within the reach of the process of the court, whether tortiously taken or not. But, as it will not lie by a debtor against an officer who has taken them under an execution out of his possession--such an effort to regain the possession of goods taken in execution, being deemed at common law a contempt of the jurisdiction of [**6]  the court issuing the execution, on the ground that goods so taken are held to be in the custody of the law, it would, for the same reason, be a contempt in any body else.
As a general principle, goods found upon the premises are liable to be taken for rent, but subject to the exception, that if they be under execution they are in the custody of the law, and cannot be distrained. It is true that the property in the goods is not in such case in the landlord, but his right in law to distrain is as complete as that of the owner of goods to an action of replevin, against him who withholds from him the possession. He is no party to the judgment and execution, and has nothing to do with either, but as to them, stands as a mere stranger, seeking to enforce his rights, but restrained from disturbing the possession of the officer, by the protecting arm of the law. It is not the officer that the law protects in doing 

 [*59]  wrong, but the possession only of the chattels, in order to effect its own ends, the purpose for which the execution issued, and therefore though it will not grant process to take from an officer, goods which he has taken by its own process regularly issued, which [**7]  would be an incongruity; yet if goods are wrongfully seized by virtue of legal process, the party injured is not deprived of remedy by the interference of the law, but has his redress against the officer for such wrongful taking, and may proceed by writ of replevin to recover the possession of the property itself, after sale, from the purchaser, for then it is out of the custody of the law, and in the hands of a private person.
The application of the rule, "that goods taken in execution cannot be replevied," to the case of a stranger, whose property has been taken on an execution against another person, may sometimes be attended with individual inconvenience. Particular descriptions of property are often valued by the owner at more than their intrinsic worth, and sometimes beyond the amount of any damages to be recovered in an action of trespass or trover against a wrongful taker; and it must always be vexatious to any one to have his property wrongfully taken, and to be driven to an action of trespass or trover for redress, instead of being restored to the possession by the writ of replevin.
But reasoning ab inconvenienti, the weight of the argument is on the other side.
A [**8]  defendant who would, if he could, defeat the ends of justice, by replevying his property himself when taken in execution, would, if the law permitted it, procure another to do it for him, under the pretext that it was his property wrongfully taken, and not the property of the debtor, and so ad infinitum; which, to borrow a strong expression, "would be moving in a circle," and a creditor might never arrive at the fruits of his judgment, and thus the very object of the law be disappointed; which would be against public policy, to which individual convenience must sometimes yield. But that inconvenience is comparatively small; it does not very often happen, that the goods of a stranger are taken on an execution issued against another; perhaps never when the fact is known to the officer, and very seldom in doubtful cases, without an indemnity 

 [*60]  from the plaintiff suing out the execution, which he is not always prepared or willing to give. And whenever the goods of a stranger are wantonly taken, or after due notice being given that they are his property, the party injured, if he chooses not to wait and replevy from the purchaser after sale, may always attain ample redress, [**9]  in exemplary damages, in an action of trespass or of trover, at the hands of a jury--a tribunal, that is always found ready to vindicate the rights of the individual against the lawless oppressor. And in cases of mere mistake, without any intention to do wrong, less than the full value of the goods taken will seldom be recovered. But if the goods were permitted to be taken from the hands of the officer by a writ of replevin, the rights of a creditor might always be defeated, by a mere stranger, having no right, since it could only be determined at the trial, and after the mischief was done, and the very object of the judgment disappointed, to whom the property belonged. And thus the law, by allowing process to defeat its own ends, would virtually close the door of justice against creditors seeking to enforce their judgments. The principle, that the goods of a stranger taken in execution out of the possession of the defendant, cannot be replevied, is recognized in Thompson vs. Button, 14 Johns. 84, and Clark vs. Skinner, 20 Johns. 465; and so far as this case is concerned, we might stop here.
But the question, whether the goods of a stranger taken [**10]  out of his possession, on an execution against another person, can be replevied out of the hands of the officer, having also been discussed, and being a question in which the public is materially concerned, and therefore proper to be settled, we avail ourselves of this occasion to express our opinions upon the subject. In Thompson vs. Button, and Clark vs. Skinner, it is held that in such case a replevin will lie.
But we cannot perceive any sufficient ground for the distinction. In either case the taking the property of a stranger is wrongful as to him, and as much so in one case as in the other. And if replevin will lie by a stranger, whose property is taken in execution out of his possession, on the principle that it is wrongfully taken, it would seem to follow that the same writ will equally lie for an equally wrongful taking of the property 

 [*61]  of a stranger out of the possession of a defendant. But it does not depend upon the question, whether the property was wrongfully taken or not, which can only be determined at the trial, but whether it was in the custody of the law or not; and that once established, the possession cannot be disturbed, but the party injured [**11]  is left to seek his remedy by an action of trespass or trover, or to wait until the goods are sold, and then to regain his possession by a writ of replevin against the purchaser, in whose hands they cease to be in the custody of the law. Upon that principle we think, that in no case whatsoever will replevin he against an officer for goods taken in execution under lawful process; and so is the case of Ilsley and others vs. Stubbs, 5 Mass. 280. If it were otherwise, it would always be in the power of a defendant to evade the law, and defeat the ends of justice, by placing his property in the hands of a friend, and causing it, when taken in execution, to be replevied from the hands of the officer by such friend; and thus the mischief would be just as great, as to permit a defendant to replevy property taken in execution out of his own possession.
MOTION SUSTAINED, AND VENDITIONI EXPONAS ORDERED.  

30 of 33 DOCUMENTS 

SEMMES vs. SEMMES, et al.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

7 H. & J. 388; 1826 Md. LEXIS 46 

June, 1826, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from a decree of the Orphans Court of Charles county, refusing to admit to probate and record a paper offered as the last will and testament of Ignatius Semmes, deceased.  

DISPOSITION:
DECREE AFFIRMED.  

HEADNOTES:

The cancelling of a will by a testator is an equivocal act, and does not amount to a revocation unless it is done animo revocandi.

Where it is a dependant relative act, done with reference to another will, which the testator thinks he has legally executed, it may be a revocation or not, as such other will is valid or not. As where a testator, having executed one will, causes another to be prepared, and cancels the first, only because he supposes the second to be duly executed, the cancelling the first will not operate as a revocation of it, if the second proves to have been improperly executed. But where the cancelling is deliberately done without accident or mistake, it will operate as a revocation, notwithstanding the party may at the time have intended to make another will, and afterwards omitted to make it.

The cancelling in this case declared to be a revocation. 

COUNSEL:
Stonestreet, for the Appellant, objected to the decree of the orphans court--1. Because it did not appear that the deceased made the obliterations which appeared on the face of the will. 2. Because if he did, they were made with a view to a new will, which was never perfected, and not with a design to an intestacy.

On the first point, he insisted that the onus probandi of the obliterations, was on the party who attempted to set aside the will. He cited Onions vs. Tyrer, 1 P. Wms. 343, (note.)

On the second point, he cited Roper on Wills, 35, 36. Goodright vs. Glazier, 4 Burr. 2515. Onions vs. Tyrer, 1 P. Wms. 343; and Gilb. Evid. 246, 427.

C. Dorsey and Brawner, for the Appellees, cited Roper on Wills, 35, 36. Pow. on Dev. 422. 8 Vin. Ab. 142, 143.

Taney, in reply. The memorandum made at the foot of the will, shows that the testator did not mean to revoke the devises in his will, except as concerned his deceased wife. His mind was not changed as to any other part [**2]  of his will. His declarations as proved, show that he did not mean to die intestate; and the will was found after his death, among his most valuable papers. His not mentioning to Col. Merrick, who had drawn his will, and with whom he was in company when in Baltimore, that he intended to make another will, when his then state of health would naturally call his attention to the subject, shows that he did not consider his will as revoked.  

OPINIONBY:
BUCHANAN 

OPINION:

 [*389]  BUCHANAN, Ch. J. delivered the opinion of the Court. It is objected, on the part of the appellant, that the orphans court did wrong in not admitting to probate a paper, purporting to have been a duly executed will of Ignatius Semmes, on two grounds: First. Because the obliterating the name of Ignatius Semmes, and also the names of the three subscribing witnesses, does not appear to have been done by the deceased; and secondly. That if it was, it did not amount to a revocation of the will.
With respect to the first proposition, it does not appear to admit of a doubt, that each obliteration was made by the deceased Ignatius Semmes.
The memorandum at the foot of the paper, and just below the signatures, [**3]  in these words--"In consequence of the death of my wife, it is become necessary to make another will," and signed Ignatius Semmes, is admitted to be in his handwriting. The obliterations were made by drawing a pen frequently, and in different directions, across his own signature, and the names of the subscribing witnesses; and the ink with which it was done, is proved to have been the same with which the memorandum at the foot of that paper was written. Hence it is manifest, that the obliterations, and the memorandum, were simultaneous acts, and by the deceased himself; and it would be straining overmuch to admit the supposition, that it might have been surreptitiously done by another, in the absence of any testimony to cast the slightest shade of suspicion upon any body. The memorandum must be considered as connected 

 [*390]  with the obliterations as a part of the res gesta, and as explanatory of the transaction. It is equivalent to a declaration, that he had made the obliterations, for the reason assigned, (the death of his wife,) which made it necessary to make another will.
Considering then the obliterations to have been made by the deceased, the second objection presents [**4]  itself, to wit, that the will was not thereby revoked; in support of which several authorities were cited and relied on in argument, but none of them sustain the proposition, and it would be somewhat strange if they did.
In Onions vs. Tyrer, 1 P. Wms. 343, the deceased, by a will duly executed to pass real estate, devised lands to trustees, to certain uses, and afterwards made another will devising the same lands to other trustees, but to the same uses, with a clause of revocation of the first, and attested by three witnesses, who did not sign their names in the presence of the testator. Supposing the second will to be duly executed to pass real estate, the testator caused the first to be cancelled. But it was determined, that the witnesses to the second, not having signed their names in the presence of the testator, it was void as to the land, and could not therefore have the effect to revoke the former; and the cancelling of the first will, under the presumption that the second was good and effectual, was held not to amount to a revocation of it, on the ground that it was done by mistake. The case of Hyde vs. Hyde, 8 Vin. Abr. 142, was clearly a [**5]  case of mistake. And the case of Mason vs. Limbrey, cited by Lord Mansfield, in 4 Burr 2515, was decided on principles not at all applicable to this case.
The cancelling of a will is said to be an equivocal act, and not to effect a revocation, unless it is done animo revocandi. And where it is a dependant relative act, done with reference to another, which is meant and supposed to be good and effectual, it may be a revocation or not, as that to which it relates is efficacious or not. As where a man having duly executed one will, afterwards causes another to be prepared, and supposing the second to be duly executed, under that impression alone cancels the first. In such case it has been held, that on the second turning out not to have been duly executed, the cancelling the first, being done by mistake and misapprehension, 

 [*391]  would not operate as a revocation. But never where a man has deliberately and intentionally cancelled his will, as in this case, in the entire absence of all accident or mistake, notwithstanding he may, at the time, have intended to make another will.
It is said, and indeed it would seem from the testimony, that Ignatius Semmes [**6]  did not intend to die intestate, but however that may be, we cannot make a will for him. By the will, which is now attempted to be set up, he had disposed of the whole of his estate to his wife, in trust for the "use and support of herself, and the benefit, education and support," of his infant son until he should arrive at the age of twenty-one years, when he bequeathed one half of his personal property absolutely to his wife; but she dying, he struck out his own signature, and the names of the subscribing witnesses, and made a memorandum at the bottom of the will, assigning as a reason for what he had done, that his wife's death had rendered it necessary to make another will. If that was not a revocation, it would be found difficult to revoke a will by cancelling. In Burtenshaw vs. Gilbert, 1 Cowper 49, which was cited in argument, there were two wills, and after the death of the party, the second will, with a duplicate of the first, which he had kept himself, were found together among his papers both cancelled; and it was proved that he had sent for an attorney to prepare another will, but lost his senses before it could be done. It was not doubted that the second [**7]  will was revoked. The only question raised, was whether the revocation of the second will did not set up the uncanceled duplicate of the first, and it was determined that it did not. That case surely cannot be called in aid of this will.
DECREE AFFIRMED.  

31 of 33 DOCUMENTS 

S. & T. RINGGOLD vs. M. RINGGOLD, et al.; M. RINGGOLD, et al. vs. S. & T. RINGGOLD.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

1 H. & G. 11; 1826 Md. LEXIS 5 

June, 1826, Decided 

PRIOR HISTORY:
 [**1]   CROSS APPEALS from the Court of Chancery. In order that this case may be fully comprehended, we give the statements made of it by the Chancellor, and by the appellant's counsel, on the appeal by S. and T. Ringgold. The appellants' counsel stated that the original bill in this case was field on the 29th of January 1811, by Mary Ringgold, wife of Thomas Ringgold, and the children of said Thomas and Mary, by James Gittings the elder, their next friend. It charges, 1st. That Thomas Ringgold, being seized of a considerable real and personal property in Virginia and Maryland, and being largely indebted, did on the 22d of October 1798, convey to Samuel and Tench Ringgold, the defendants, all his said real estate, in trust, to sell the same and pay his debts, and for other purposes. 2d. At the same time Thomas gave to his said trustees, authority to collect large sums of money due to him, and apply them in the same manner. They collected large sums, the amount thereof not ascertained, and they are required to render an account thereof. Shortly after the execution of said deed, and until the filing of the bill, Thomas and his wife have lived separately, and the wife and children have been [**2]  supported by the father of the wife, James Gittings. 3d. The said Thomas, Samuel and Tench, seeing the justice of making provision for the wife and children of Thomas, which had been omitted in the first deed, and the wife being willing on these terms to relinquish her right of dower, a second deed to Samuel and Tench was executed on the 18th of December 1807, in which the wife relinquished her dower, and which conveyed to them all the real, and a large personal estate. In pursuance of said last deed, the trustees made sale, on or about the 2d of May 1808, of a large portion of the real and personal estate, and have received large sums of money, bonds, &c. A partial account thereof has been rendered to the complainants by Samuel. It is charged that there still remain unsold divers other tracts of land and personal estate. The complainants are informed that the trustees, or one of them, are or is largely indebted to Thomas for the proceeds of the estate of his brother Benjamin, which they contend ought to be set off against the sums paid by the trustees for Thomas, and pray that the amount of it may be set forth in the answer to the bill, and that it may be accounted for. It is charged [**3]  that the trustees have not paid any part of the proceeds of sale to the complainants, nor have they invested it in any stock. Much of the money, with the bonds and notes, is in the hands of Tench Ringgold, who is out of the jurisdiction of the court. The bill then requires the defendants to answer the premises, and particularly what part of the property was sold, and for what price, and that they render a particular account of their transactions under said deed of trust. Whether they have not received large sums of money due to Thomas Ringgold? and if yea, that they render a particular account of each sum so received. Whether either of them was indebted to Thomas; whether they have paid any of the debts due from said Thomas, and state the same? If any yet due, to what amount, and to whom due? Prayer, that Samuel and Tench be compelled in all respects to execute the trust, and after paying the debts, to invest the balance for the benefit of the complainants. Also a prayer for general relief. The complainants' exhibits.--The deed of the 22d of October 1798 from Thomas Ringgold to Samuel and Tench Ringgold, of all his, (Thomas') houses, lands, lots and tenements, situate within Maryland [**4]  and Virginia, in trust, to sell the same at public or private sale, for cash, or on credit, as they, or the survivor, may judge most expedient, and apply the proceeds to discharge the legacies directed in his father's will, to be paid by Thomas. 2d. To discharge all judgments at the time obtained against Thomas, with power to contest such as are not just. 3d. To secure and indemnify said trustees against all bonds entered into by them, or either of them, for Thomas, and all costs, fees to counsel, &c. incurred in virtue of this deed of trust. 4. To pay all other debts then due. 5. And as to the surplus, to permit Thomas to possess the real estate, and receive the interest of the money, or have the same invested for his use, during his life, and after his death, his wife, if she survives him, to enjoy one third part of the real, and to receive one third of the interest of the money to her own use, and the rest to be applied to such persons as Thomas by his last will shall direct. If Thomas survive his wife, the whole of it to be applied as directed by his last will. To this deed there was no relinquishment of dower. Also the deed of the 18th of December 1807, from Thomas to Samuel and [**5]  Tench, for all Thomas's land, in the counties of Kent, Queen-Anne's and Baltimore, wherever situate, in the state of Maryland, and all his negroes, stock, horses and plantation untensils, in trust, to sell immediately the whole, and after paying all the just debts of said Thomas, to invest the proceeds, when received, in bank stock, stock of the U. S. or turnpike stock. 2d. To pay to the wife of Thomas, during their joint lives, one-fifth part of the interest or dividends, as the same may be received, for her sole use. 3d. One-half of the residue of said dividends to the support and education of the children. 4th. All that remains to be paid to the grantor. 5th. If the wife of the grantor survive him, she is to receive one-third, and the rest to be applied to the support and education of the children. (Further provision in case the grantor survived his wife.) Finally, the whole capital to be transferred to such of the children as Thomas shall by will direct, or if no will, to go equally to the whole. To this deed there was the wife's relinquishment of dower. Also the partial account of the trustee, (Exhibit No. 3,) which it is stated in the bill was rendered by Samuel to the complainants.  [**6]  It purports to be an account of sales of land and negroes, stock and farming utensils, sold by S. and T. Ringgold, without date. The answer of Samuel Ringgold, filed the 12th of February 1814, admits the deeds; that the defendants accepted of the trust, and sold the property, with the exception of some parcels of land, which are described, and which he states they had been unable to sell. He exhibits accounts marked S. R. No. 1 to No. 4, which he states contain a full exposition of his conduct as trustee. In these he has charged himself with all monies which came to his hands as a trustee, and gives himself credit for all payments made by him, and that there was due to him on the 13th of March 1813, the sum of $ 13,084 77. In these accounts he has not charged himself with $ 25,000 mentioned in the account rendered to the complainants, (their Exhibit No. 3,) as the price of land sold to R. S. Thomas. The said land was sold to R. S. Thomas for certain lots at Havre-de-Grace, and certain ferry rights on the Susquehanna, estimated at $ 18,000; and, secured by mortgage, $ 7,000, amounting together to $ 25,000. The said sale was considered at the time highly beneficial to Thomas Ringgold,  [**7]  and the complainants. Thomas Ringgold, before the exchange took place, was consulted, and advised it, and has since approved of it, as will appear by Exhibit No. 5, with Thomas Ringgold's certificate thereto, of the 30th of March 1813. The property received in exchange as aforesaid from R. S. Thomas was conveyed in fee simple to the trustees. The defendant has always considered the same to be held in trust for Thomas and his family. Last summer (1813) the ferry-house, a large and valuable brick building, was destroyed by the British. Since, the defendants have sold said property for $ 14,000, for which they are accountable to the complainants. Although in the account rendered (complainants' Exhibit No. 3,) the farm called Hopewell was estimated at $ 20,178, it was in reality worth only $ 16,000. It was put up at that sum, and was struck off at that bid, at the time of the sale; but in the exchange with R. S. Thomas it was estimated at the first sum. The answer next states judgments obtained by John James Maund against Thomas Ringgold, for the removal of which to the court of appeals, the defendant became security in the appeal bonds. If these claims should be sustained, they will greatly [**8]  increase the balance due from Thomas Ringgold to the defendant. It is stated that the claims were believed to be fraudulent, and a bill for relief had been filed in chancery. There are other claims, but of the precise amount the defendant is not informed. Exhibit S. R. No. 6, is a list of lands, negroes and specifies, sold by the trustees, and the previous Exhibits, S. R. 1, 2, 3, 4, will show what part of the purchase money has been received by him. As to Benj. Ringgold's estate, the negroes and horses were divided among the representatives before the execution of the deed of trust; the balance of the personal estate not sufficient to pay the debts of the deceased. The real estate of said Benjamin consisted of land in Queen-Anne's, (the interest of Thomas in which is a part of his real estate, not sold,) and a tract of land in Washington county, which Thomas himself sold to the other defendant, Tench. The answer also sets forth a legacy of £  500, left by their mother to the defendants, in trust for Thomas and his family, and for which Thomas is credited in statement No. 4. The answer of Tench Ringgold, filed the 15th of July 1816, exhibits accounts, which show the monies received [**9]  and paid by him--gives the statement that is given by the other defendant relative to the exchange of lands with R. S. Thomas; and states sundry expenses incurred by him, in order to give value to the ferry property received in the exchange. He refers to exhibit F, for showing the balance due from him to be $ 14,811 15. On the 6th of October 1818, the complainants filed a supplemental bill, and set forth the proceedings in the former suit. They charge, that agreeably to the provisions of the deed of 1798, the wife, in the event of her surviving the husband, was entitled to a certain interest, and the rest of the complainants to the balance of the trust property, in the event of Thomas Ringgold dying intestate; and that the deed of 1807 invested complainants with an immediate and certain interest, in certain proportion, in one half of said trust estate, during the lite of Thomas Ringgold, and after his death, with a contingent interest in the whole proceeds. The complainants next charge, that Thomas Ringgold on the 28th of March, 1816, conveyed all his interest in said property to his two sons, Thomas and James, in trust, to provide for his comfortable maintenance, and for the support [**10]  and education of all his children--and divide the principal among them as they should arrive at full age, and with authority to the grantees to compel the trustees to execute the trust. They have lately been surprised to hear, that Thomas Ringgold, who is stated to have died in 1818, had left a will, which the complainants exhibit, leaving to his daughter Elizabeth £  500, on her arriving at 18, or her marriage; $ 500 to Silence Kinsley, and the rest to be equally divided among all the children, including Elizabeth. The executors renounced, and letters of administration have been granted to the widow. The complainants are advised, that Thomas Ringgold, after the said deeds, had nothing to dispose of after his death. These facts having happened since the filing of the original bill, in order to bring the rights of all parties before the court, and to have a full settlement of said trust, it is necessary for complainants to file this their supplemental bill, which they pray may be accepted as such. They have reason to believe, that the defendants have, since filing the original bill, sold more of the trust property, and have received the purchase money, and other monies, for property [**11]  sold previously. "which sums of money are no ways accounted for in the answers of said trustees to the said bill, or the accounts and exhibits therewith filed." There were various articles of property received by said defendants under the deeds of trusts, and various sums of money received by them before the filing of the original bill, which are not noticed, or any ways accounted for, in their answers, and the accounts and exhibits therewith filed. They mention nine negroes taken by Samuel at $ 2000; a negro woman and her two sons, worth $ 800, taken by Tench; also considerable sums of money received by them for rents of land in Kent and Queen-Anne's counties before the filing of the bill, for which no account is rendered. They conceive that they are entitled to demand the $ 25,000 for lands sold to Richard S. Thomas, and have nothing to do with the property and ferries, and ferry rights, bought from R. S. Thomas; yet if mistaken in this they have a right to demand an account of the rents and profits thereof. They call upon the defendants to answer the premises, and fully and particularly account for all their acts and doings; pay over all the monies, and assign to them all the trust [**12]  property. The will of Thomas Ringgold, exhibited by the complainants--In it is the following clause: "Whereas I am fully sensible that my brothers, Samuel Ringgold and Tench Ringgold, have, always considered my interest, and have done every thing in their power to advance my welfare, and that of my family, I do hereby fully, completely, and in the most ample manner, ratify and confirm all purchases and sales of whatever nature or kind, of my property, made by my said brothers, or either of them, or both of them." The will is dated the 6th of July 1811, and was proved on the 20th of May 1818. S. Ringgold's answer to the amended bill, was filed the 6th of October 1819. He admits the deed of Thomas Ringgold to his sons, and his will; that his widow was appointed administratrix; states some sales which have taken place of trust property; some of the money still due, the rest paid to the complainants. He denies that he had received any money not accounted for in his answer to the original bill. The negroes delivered to him at $ 2,000, were in part payment of a debt due to him from Thomas Ringgold. He accounted in his former answer for all rents and profits received by him. He leaves it [**13]  to his co-trustee to render an account of the rents received by him, also of the negroes which he is charged to have received. The answer of Tench Ringgold to the supplemental bill, states that he has sold no property since filing his first answer. He denies the charge of having taken a negro woman and her children, the property of Thomas Ringgold. In answer to the charge of having received rents and profits of the ferry, he gives a particular account of the contract with R. S. Thomas; the approbation of it by the complainant Mary, as well as her husband; the situation of the ferry property; the expenses incurred by him in regard to it, &c. &c. An abstract of which, on account of its length, cannot here be given.

Commissions issued, and testimony taken thereunder; and by agreement of the parties, the auditor was directed to state the accounts. To the report and accounts of the auditor, both parties excepted upon various grounds. The case having been argued was submitted.

JOHNSON, Chancellor, (July Term, 1824.) On the 29th of January 1811, the original bill was filed, setting forth, that on the 22d of October 1798, Thomas Ringgold, the husband of Mary, and father of the other [**14]  complainants, being largely indebted, executed a deed to the defendants for a large real and personal estate in Maryland and Virginia, in trust, to sell and pay his debts. First. The debts and legacies of his father's will. Second. All judgments at that time obtained, with the power of contesting such as were not considered fair. Third. To indemnify the defendants as his sureties, and from all cost and fees to counsel, and expenses incurred under the deed. Fourth. To pay all other debts at that time due. Fifth. The surplus, consisting of real estate, bonds or money, in trust, to permit the grantor to hold and possess the real estate, and receive the interest of the money, or have it laid out and invested for his benefit, during life, to his own use and advantage; on his death, living the wife, she to have one-third of the real estate, and to receive the interest of one-third of the money during her life, in lieu of dower. Sixth. The other two-thirds to be conveyed and applied to such persons as Thomas Ringgold, by his will, shall direct. Seventh. If he survived his wife, then the whole to be conveyed and applied according to his will; and Eighth. If he died intestate, then to his heirs [**15]  and representatives. To this deed Mrs. Ringgold was not a party, nor did she release her right of dower. The trustees, as the bill declares, were also authorised to receive the debts due to the grantor, and they did receive them to a large amount. Shortly after the deed, Thomas Ringgold, and wife, by mutual consent, agreed to live separate, and remained so when the bill was filed, and she, and the children, as is stated in the bill, lived with and were supported, and the children educated by her father, James Gittings. Thomas, Samuel, and Tench Ringgold, in order to make provision for the wife and children, and she, on the terms of such provision, agreeing to release her dower, another deed, on the 18th of December 1807, was executed, by which Thomas conveyed to Samuel and Tench all the lands and real estate of Thomas, lying in the counties of Kent, Queen-Anne's and Baltimore, wherever situated in Maryland, with all his negroes, stock, horses and plantation utensils, in trust, immediately to sell the whole at public or private sale for the best price, and after paying all debts, to invest the proceeds, when received, in bank stock, or in stock of the United States, or turnpike stock,  [**16]  as shall be most beneficial. Second. To pay to the wife, for her sole and separate use, during the joint lives of husband and wife, one-fifth of the interest or dividend yearly, or half yearly, as the same may be received. Third. To pay and apply one-half of the residue to the support and education of the children, yearly or half yearly. Fourth. To pay the whole residue to Thomas; and in the event of the wife's surviving, then, Fifth. She is have one-third, in lieu of the one-fifth. Sixth. The other two-thirds to support and educate the children; and if Thomas survived, Seventh. Then one-fifth given to the wife to go to him. Eighth. Till the proceeds of the sale are invested, the interest to be paid and applied as received, in the same proportions and manner to the same persons. Ninth. To transfer and assign the whole capital, whether in stocks or debts, to such of their children as Thomas by will shall direct, subject to the previous trusts; and if he died intestate, then the whole capital to be equally divided amongst their children, subject to the previous trusts. This deed was signed by the wife, as well as by Thomas, Samuel, and Tench Ringgold; and she formally released her dower.  [**17]  In virtue of this deed, as the bill declares, the trustees, on or about the 2d of May 1808, sold a large portion of the real and personal estate, received divers sums of money, bonds, notes and mortgages, of which a partial account was rendered by Samuel; that there remained unsold other lands and personal property. That the trustees, or one of them, is largely indebted for the proceeds of the estate of Benjamin Ringgold, deceased, which the bill claims to be set off against what the trustees may have paid for Thomas. No part of the proceeds of sale have been invested, and the greater part of the money, bonds, and other securities, the bill declares, are in the hands of Tench Ringgold, residing in the District of Columbia. The amount of sales, according to the account rendered by Samuel, a copy of which, Exhibit No. 3, is filed with the bill, is $ 48,886 90. In this account, a tract of land called Hopewell, with certain other property specified, is stated to have been sold to Richard S. Thomas for $ 25,000. A memorandum appears at the foot of the account as follows, to wit: "The ferries at Susquehanna we have taken from Mr. Thomas at $ 18,000. The deed is given to S. and T. Ringgold,  [**18]  as they had no right under the deeds of trust to invest the monies in lands, and S. and T. Ringgold are answerable for that amount. They mean to sell them as soon as they can to advantage, which shall accrue for the benefit of Thomas Ringgold, Mrs. Ringgold, and the children." The original account, of which Exhibit No. 3 is a copy, distinguished by Exhibit B, is in the handwriting of Samuel Ringgold. Samuel Ringgold, in his answer filed on the 12th of February 1814, admits the trust deeds, and the sale of the real and personal estate for the purposes specified, except part of the real estate of Benjamin Ringgold in Queen-Anne's, and about 60 acres in Kent county, which they have not been able to sell. His accounts, exhibited with his answer, S. R. No. 1, to S. R. No. 4, contain a full statement of his conduct as trustee. In those statements he has charged himself with all monies that have come to his hands, and credited himself with payments and disbursements, and there was due to him on the 13th of March 1813, $ 13,084 77. In these statements the respondent says he has not charged himself with the sale of the property estimated in the account rendered by him to the complainants, of [**19]  $ 25,000, for land sold to R. S. Thomas, for lots and land at Havre-de-Grace, with ferries and ferry rights on Susquehanna river, in which account Hopewell was valued at $ 18,000. Before the sale or exchange Thomas Ringgold was consulted, and he approved the measure, and it was deemed a beneficial transaction. R. S. Thomas conveyed to S. and T. Ringgold, and that he, (Samuel,) always considered himself a trustee for Thomas Ringgold and family. The last summer, the answer states, that the ferry-house, a large and valuable building, was destroyed by the British, and since then the trustees have sold the property for $ 14,000, for which they are accountable. And although in the account rendered by the respondent, Hopewell is estimated at $ 20,178, yet he alleges it was only worth $ 16,000, the sum it was put up for at the public sale, and struck off at the trustees' bid. In the negotiation with R. S. Thomas it was estimated at $ 20,178 by which the trustees made $ 4,178 for the complainants. That exclusive of the $ 13,084 due to the respondent, he has made himself answerable for a large sum on account of a judgment obtained by one Maund, use of Ricketts and Newton. Suits were brought [**20]  on the appeal bonds, executed on the removal of the original judgment to the court of appeals, and judgments obtained, and if compelled to pay, the balance due him will be proportionably increased. The claim, (Maund's) was thought unjust, and therefore contested. The answer denies that the complainants have been entirely maintained by Mr. Gittings, for the respondent paid two thousand dollars. Samuel Ringgold administered on Benjamin Ringgold's estate, and the negroes, and some other property, were divided between the representatives before the deed of trust, not leaving enough to pay the debts. The part of the real estate in Washington county of Benjamin's, that Thomas was entitled to, he sold to Tench. Tench in his answer states in substance, so far as relates to Hopewell, and the ferries, the same facts as in Samuel's answer. In the original answer of Tench no vouchers were filed; exceptions were taken, which were sustained; and on the 15th of July 1816, an amended answer was filed, accompanied with certain vouchers. Thomas Ringgold having died on the 6th of October 1818, a supplemental bill appears, setting forth, that on the 28th of March 1816, Thomas Ringgold transferred to his [**21]  two sons Thomas and James, all his interest in the trust property, in trust, out of the interest and dividends, to provide for the father's comfortable maintenance, for the support and education of his two sons and their brothers and sisters, during their minority, and to divide the principal and interest equally between them, their brothers and sisters, as they respectively arrived at age, and authorised the grantees to compel a settlement with the defendants. Thomas Ringgold, on the 6th of July 1811, made a will, and after certain bequests devised the residue of his estate equally amongst his children--the executors renounced, when letters of administration were obtained by Mary his widow. Since the original bill, the supplemental bill charges, that the trustees have sold more of the trust property, and received more money, and in the answers to the original bill they did not account for all they had received, particularly nine negroes taken by Samuel at $ 2000, and that they have not accounted for rents received. In the supplemental bill it is alleged, that the deed of trust to the sons being subsequent to the will, revoked it. Samuel, in his answer to the last bill, denies that [**22]  any of the trust funds were sold, except some lands in Kent, for which suits were depending to recover the purchase money; and except another small piece, the purchase money for which was received by James G. Ringgold, one of the complainants. Admits the delivery of the negroes to him at $ 2000. On the 13th of July 1820, with the consent of the parties, an interlocutory decree was made, directing the auditor "to state an account upon the evidence already taken, and upon such other evidence as shall be produced before him by either of the parties. That the auditor shall state accounts according to the instructions of each of the parties, and that all equity, as to the rights of the parties, be reserved until final hearing." After taking, in virtue of the decree, a variety of evidence, and with the mutual admissions of the correctness of various items against the defendants, and of sundry disbursements in their favour, on the 6th July 1822, his report was made, containing several accounts in pursuance of the complainants' instructions--One of the defendant's, and a third in conformity with the auditor's own judgment. From the voluminous papers and documents, the variety of evidence,  [**23]  and the extensiveness of the transaction, much labour and attention are indispensable for a correct decision of this cause; but the well arranged view of the subject taken by the auditor in his report and accounts, greatly contributes to relieve the court. In making his report he has distinguished those disbursements which are admitted, from those not admitted, or disputed, or reserved for his further consideration. Those statements he has distinguished by Nos. 1 and 2. From the evidence and vouchers admitted, the defendants' receipts are stated before and to the time of the second deed of trust of the 18th of December 1807, distinguishing them by their respective sources, and classing them accordingly in separate statements marked A, B, C, and D. From those materials an account current between each of the trustees is stated to the date of the second deed, charging and crediting each with his own receipts, and admitted disbursements, and with interest, showing the balance then due to or from either The interest is charged from the end of six months after the date of the receipt. These accounts are numbered 1 and 2, From the evidence referred to, statement E is made to show the several [**24]  sums which the trustees were chargeable for on account of sales of the trust estate, by them made about the close of the year 1807, and afterwards. This statement, as the auditor most correctly observes, makes an important part of every subsequent account; and in regard to the sale of Hopewell, and the ferries, taken in exchange, is controverted by both parties.

In the statement E, the defendants are charged with the sum of $ 16,320, on account of the sale of Hopewell, when according to exhibit B, (the list of sales furnished by the trustees,) that tract is charged as having been sold for $ 20,178. The sale of this tract of land presents one of the important subjects of controversy. To present the subject matter of controversy in a clear light, the auditor has returned with his report several accounts predicated on different principles--the account No. 4 leaves a balance against the defendants of $ 46,963 92; this is the account formed according to the auditor's judgment. Account No. 5, grounded on the complainants' instructions, makes a balance in their favour of $ 74,463 23; and account No. 6, founded on the defendants' instructions, makes the balance only $ 21,900 39. Exceptions [**25]  have been taken by the complainants and defendants, each excepting to all the accounts that are inconsistent with the accounts they claim as correct; in other words, the complainants insist on account No. 5, and the defendants on account No. 6. The case has been fully and elaborately argued, since then that attention has been bestowed on the cause which its magnitude and importance demanded.

The first subject of inquiry is to what extent are the defendants responsible on account of the sale or exchange of the tract of land called Hopewell?

Trustees, who faithfully and diligently discharge the duties they take on themselves to perform, can never sustain loss; they are only liable for what they duly receive in the performance of the trust; and acting bona fide within trust limits, should an injudicious sale of the trust funds be made, yet no responsibility attaches to them, they can only be called on to account for the amount actually received. But when the trustee transcends his limits, when the funds confided to his limited superintendance are applied to objects foreign from the trusts, then he becomes responsible for the utmost value of the funds thus misapplied. Lupton vs. White, 15 Ves. 432. [**26]  The Attorney General vs. Fullerton, 2 Ves. & Beam. 265. Hart vs. Ten Eyck, 2 Johns. Ch. Rep. 108, 116.

The deeds, under which the trustees acted, cannot be considered as authorising them to exchange the land for other land. The object of the deeds was to raise money to meet pressing demands to discharge the debts Thomas Ringgold was responsible for, to indemnify his sureties, and to invest the surplus as prescribed for the benefit of the respective persons mentioned in the deed, and to the extent as herein provided. Of the limited powers conferred by the deeds, the trustees were perfectly aware, and therefore, in the account of sales rendered by S. Ringgold, he remarked, "The ferries at Susquehanna we have taken from Mr. Thomas at $ 18,000. The deed is given to S. and T. Ringgold, as they had no right, under the deeds of trust, to invest the monies in lands, and S. and T. Ringgold are answerable for that amount." If trustees, misapplying the trust funds, are responsible for the utmost value, and as the tract of land called Hopewell has been parted with by them to an object foreign from the trust, it would appear, that the only subject of inquiry, in regard [**27]  to the extent of the trustee's responsibility on that account, is the value of the land.

When the tract was exposed to public sale, it appears by the evidence it was struck off at $ 16 per acre, the price it was set up at. That afterwards they agreed to sell it to R. S. Thomas for that price, which ultimately he refused, when the exchange was accomplished, in which Hopewell was estimated at $ 20,178. If a trustee diverts the funds, by applying them to objects foreign from the trust, the cestui que trust has a right, either to receive that which the trustees obtained, or to make the trustee answerable for the full value of that which he parted with. The cestui que trusts in the present cause, if competent to act, could have elected to take the ferries in lieu of Hopewell, but they were not bound to do so; and as they claim the real value of Hopewell in 1807, when it was exchanged, they are entitled to receive it. On the part of the defendants no evidence is produced, except, that when exposed at public sale, it was struck off at $ 16 an acre, and that R. S. Thomas, after agreeing to give that price, refused to comply. Three witnesses are produced on the complainants' side, viz.  [**28]  G. W. Thomas, William Barroll and Thomas Worrell, all of whom concur, that the land exchanged was worth $ 25,000; they do not designate the value of each part, but in the aggregate fix the value to be that which the trustees had placed on it in making the exchange. Wm. Pearce makes Hopewell to be worth $ 20 an acre, which is $ 222 more than it was valued at.

I am not apprised of any case being determined on which the value of funds, misapplied by trustees, have been come at by fixing on the amount they offered them at; the establishing such a principle might be productive of the most serious consequences, and prove highly detrimental to the interest of the cestui que trusts; but if in any instance it might be resorted to, surely not where the trustees had fixed subsequently on an enhanced value, and when that was, by disinterested witnesses, confirmed as the real value. The defendants are therefore to be charged with Hopewell, at the price attached to it at the time of the exchange. The trust in this cause was undertaken from the best of motives, attended with great expense, and considerable inconvenience to the trustees; they must sustain a loss; the unfortunate result of the [**29]  exchange; the consequent destruction of the property on the ferry establishments, all fall on them, although the trusts reposed did not justify the ruinous transactions, all flowing from that exchange. Yet I feel fully assured the trustees acted from, and were governed by, the purest of motives, to wit, to extricate their brother, and provide for his family. And although principles, too powerful to be resisted, call on the court to cast those losses on them, yet so far as the just power of the court extends, they should be protected.

In the statement of the accounts by the auditor, he has allowed to the trustees a commission. It is true the British authorities refused to trustees commissions eo nomine, and yet they allow a compensation for the time employed in the performance of the trust, under the appellation of a per diem. But in this state the per diem has, if it ever existed, long since been abandoned, and the compensation is made by way of commission. To the cestui que trust the name of the compensation is of no moment; and to permit a per diem to be the governing rule, would be for the trustees to fix on the amount of the compensation, or the court must reject that part [**30]  of the report stating the time they were engaged, and resort to some other standard, difficult to be fixed on. The defendants are therefore to be allowed the commissions according to the principles of the report.

The auditor has given credit to the defendants for several sums alleged to be paid by them, in the performance of the trust, to support which no other voucher exists except the accounts rendered by the defendants in their answers to the original and supplemental bills. In the case of Hart vs. Ten Eyck, 2 Johns. Ch. Rep. 87, the law on this subject came under the consideration of Chancellor Kent. There are all the items in the account of Van Rensselaer (one of the defendants,) unsupported by evidence, and resting alone on the answer, were not correctly rejected. The bill was against him, and others, for an account as administrators, and charging them with various acts of fraud. Van Rensselaer in his answer, sets up certain claims against the testator himself, and those were attempted to be supported by his answer alone. After examining the claims specified in the account, and remarking on each, the chancellor reviews the law generally, and comes to the conclusion--"That [**31]  those charges in the account, which are without proof, are inadmissible, and cannot be upheld by the answer, is a proposition which I consider to be as settled in law as it is in reason."

In the course of the discussion, a distinction is taken between reading an answer either at law or in chancery, when it is introduced as evidence, and the effect of the answer, in the very case under consideration, and before the court for its decision, when that answer was put in issue. In the first it seems conceded, if part of the answer is read, the other party has a right to read the whole as evidence--not so when the answer is put in issue. It seems to me, that the law is most clearly established, that when the defendant in chancery admits a charge against him, and desires to remove it by the statement of a distinct fact, by way of avoidance, and the answer is put in issue, the proof of the matter of avoidance is on him. But the nature, or the precise meaning, of the word avoidance, does not so clearly appear. And all the cases which have presented themselves to my view, are of the representatives of deceased persons, as executors or administrators, when called on to account, setting up [**32]  claims against the deceased, not for expenses incurred in the performance of their trusts.

The case before Lord Chancellor Cowper, as reported in Gilbert's Law of Evidence, 45, was a bill by creditors against an executor for an account of the personal estate. The executor stated in his answer, that the testator left £  1,100 in his hands. Afterwards, on a settlement with the testator, he the executor gave his bond for £  1,000; and the other hundred pounds was given by the testator for his care and trouble. It was urged, in behalf of the executor, that having charged himself, and no testimony appearing, he ought to find credit where he swore in his own discharge. But it was resolved by the court, that when an answer was put in issue, what was confessed and admitted by it need not be proved, but that the defendant must make out, by proof, what was insisted on by way of avoidance. There is an obscurity in the report of this case. As no one can be heir to a living person, so no man alive can have an executor, (unless in old times, when he might be civiliter mortuus;) and therefore, a testator could never give to his executor £  100 out of $ 1100 he had left with him, and take his [**33]  bond for the balance.

If the defendant in his answer admits the receipt of money, but in the same sentence says he paid it away, the disbursement claimed needs no other proof; but if in one sentence the receipt is admitted, and in another the payment alleged, it must be proved otherwise than by the answer. Kirkpatrick vs. Love, Amb. 589. Blount vs. Burrow, 4 Bro. Ch. Rep. 74. Hart vs. Ten Eyck, 2 Johns. Ch. Rep. 87, &c. And these rules are said to be similar to those which govern in a court of law. But I am not aware that such principles prevail at law. It is very true, that when proof is obtained at law, that the defendant at one time admitted he received money from or of the plaintiff, he shall not free himself from the effect of that admission, by declaring at a different time he restored it to him, or applied it for his use. A court takes the whole conversations or declarations made at the same time, and does not limit its effect to this or that sentence. If at law the plaintiff uses as evidence the defendant's account to charge him, he is entitled to read the residue to discharge him, and is not confined to such as may be connected with the same [**34]  sentence. The same, if the letters of the defendant are read in part by the plaintiff to charge, the residue may be resorted to, to exonerate from the claim; and notwithstanding the high names maintaining the justice of the rule, that what is admitted in the answer, cannot be defeated by the answer when put in issue, I must confess the justice of the rule is not so clear to my mind. But the rule is not only said to be just, but a contrary doctrine would be pernicious, and render it absolutely dangerous to employ the jurisdiction of this court, inasmuch as it would enable a defendant to defeat the plaintiff's just demands by the testimony of his own oath, setting up a discharge or matter in avoidance. Hart vs. Ten Eyck, 2 Johns. Ch. Rep. 90. It appears to me more just, that if the complainant relies on the defendant's answer to maintain his claim, that he should take that answer entire; that the whole, as it would at law, should be before the court, with the powers of believing such parts, and no more than was believed to be true. The rule is too technical for a court of equity, which excludes the defendant from the beneficial parts of his answer, while his adversary is [**35]  suffered to avail himself of those parts in his favour. A court of equity forces a defendant to disclose the whole transactions, and in the instances of executors and trustees, forces them to render an account, not only of their receipts, but disbursements; and it would seem but just, that at least the attention of the court should be called to those statements made in compliance with its mandate, and not to have its eyes closed, and its understanding arrested, by being told the answer is at issue, and therefore the complainant may seize on admissions in his favour, and exclude the defendant from simultaneous statements; for let it be remembered, the whole answer is presented to the court at the same time.

The case now before me is not perfectly similar to those referred to in the opinion of Chancellor Kent. Here, the defendants for many years acting as trustees in the settlement of a complicated estate, were authorised to pay debts, provide for the support of the cestui que trusts, and having entered on the trusts, after a considerable time are called on for a settlement. No imputation or charge of fraud is made against them; they are called to render a particular account of [**36]  their transactions by the original bill, and by the supplemental bill; that they fully and particularly account for all their acts and doings. The accounts and the correctness of them to a very great extent, at least, by the admissions of the complainants, are just. If it would be absolutely dangerous to employ the jurisdiction of the court, inasmuch as it would enable a defendant to defeat the plaintiff's just demands by the testimony of his own oath, setting up a discharge or matter of avoidance, may not the same be said on the other side, that it is absolutely dangerous to a defendant to call upon him for an account of his transactions as trustee, then to sift from his answer every thing to charge him, and turn him over to seek for proof of his own disbursements, great part of which cannot be obtained, owing to the confidence between him and the cestui que trusts. But the dangers on the part of the plaintiff and of the defendant are removed, by permitting the whole answer, if any part is relied on, to go before the court, with liberty to reject such parts as are not believed to be true. And believing, from the whole of the transactions, that all the disbursements allowed by the [**37]  auditor, except that relating to Hopewell, are true, they are allowed, and the exceptions of the complainants on that subject overruled.

On the subject of interest I shall not attempt to review the numerous authorities produced at the argument, but content myself by observing the interest has been charged in conformity with the usual practice in this state. When trustees are directed to invest money, and fail to do it, they are liable to be charged with compound interest, unless some sufficient reason exists to free them. But that applies to cases of plain trusts, where the duty is obvious, and the means of performance clearly within their reach. In this case, from the whole of the evidence, it is difficult to fix on any period that the trustees had money in hand to be invested. The receipts by them, and the expenditures, are so blended together that the rule usually adopted in the interchange of dealings between merchants of interest accounts, appears the most judicious, and the allowance of the six months to pay away or invest before the trustees should be charged with interest, appears not unjust. The interest, therefore, allowed by the auditor to them, as well as that with [**38]  which they are charged, is allowed.

It is difficult in this cause to divide the mutual responsibility of the defendants to the complainants; the funds confided to them have in part been so blended with their own affair; and the defendant, Samuel, having permitted Tench to receive so large a part of the money, when the former was in advance. By the cestui que trust the confidence was reposed in both of the trustees, one had no right to suffer the funds to remain unemployed in the hands of the other, especially when he had left the state, and was beyond the jurisdiction of the court. The acceptance of the trust, to use the language of Chancellor Hardwicke, obliged them to execute it with fidelity and reasonable diligence. 2 Atk. 406. And although I am perfectly satisfied it never was the intention of either of the trustees to conduct themselves so as to produce loss to the cestui que trusts, yet by dividing the responsibility, and making each only liable for what he received, I apprehend would cast a heavy loss on them. My opinion is, that each is liable to the complainants for the whole sum due them.

In respect to Thomas Ringgold's sanctioning accounts, and to [**39]  his approval of the exchange of Hopewell, it can have no effect; after the deeds of trust were executed, he alone could not control or direct their objects. In regard to the accounts, I am perfectly assured he did not know whether they were just or not; but when his condition is taken into view, united with the cautious manner the court views the transactions between the trustee and the cestui que trusts, it appears to me that no tribunal ought to say that his confirmation of those accounts should free the defendant, Samuel Ringgold, from accounting in this court. In order, therefore, that the opinion expressed should be carried into effect, the auditor is directed to state an account pursuant thereto. The accounts, when stated, not to be subject to exception.

The auditor, in conformity to the above decretal order, stated an additional account, making a balance due from the defendants to the complainants, of $ 53,857 79, with interest on $ 39,480 46, part thereof, from the 1st of July 1822, until paid.

BLAND, Chancellor, (December term 1824.) The chancellor having considered the decretal order pronounced in this cause on the twenty-sixth day of July, in the year eighteen [**40]  hundred and twenty-four, as well as the report of the auditor of this court of the account between the parties, which has been stated conformably to said order, and exhibited in this court on the twenty-seventh day of September in the year aforesaid--Decreed, That the report of the auditor be confirmed, and that the defendants, Samuel Ringgold and Tench Ringgold shall, on or before the first day of December next, pay to the complainants, or bring into this court to be paid to them, the sum of fifty-three thousand eight hundred and fifty-seven dollars and seventy-nine cents, together with interest on thirty-nine thousand four hundred and eighty dollars and forty-six cents, part of the first mentioned sum, from the first day of July, in the year eighteen hundred and twenty-two, and the costs incurred by the said complainants in this court.

From which decree both parties appealed to this court.  

DISPOSITION:
Each party paid their own costs.  

HEADNOTES:

Trustees empowered by deed to sell real estate, and with the proceeds pay debts and make investments in stock, are not authorised to exchange the trust property for other real property. By making such exchange, though with the best intentions, they are responsible for the full value of the property parted with.

The policy of the law requires, that the relation of trustee, and cestui que trust, should be guarded with vigilance, and contracts between them scrutinized, that no injustice should be done the cestui que trust.

Where a cestui que trust has undertaken to indemnify his trustee, a court of equity ought to be satisfied that he was free to act, as a rational, intelligent man, not governed by considerations growing out of a dependant condition; otherwise the indemnities will be disregarded.

Where a trustee disposes of the title to lands, in violation of his duty, and the court has no other possible means of reinstating the cestui que trust, the trustee is responsible for the utmost value of the property disposed of; yet when the value of the property can be clearly ascertained, that must be the measure of the indemnity.

In the case of a mixture or confusion of property from necessity, the full value is given to the innocent party.

A sale by one trustee to his co-trustee, is illegal.

Where it was the duty of trustees to collect purchase money, and invest it, some of the trust estate being sold to T, a co-trustee, and S, another trustee, made no effort, at any period during the existence of the trust, to oblige his co-trustee to pay for his purchase, but suffered it to lie in the hands of T, when he, S, knew, that the trust was abused, in consequence of a failure on T's part to apply the amount of the purchase money according to the trust, they are both responsible.

Where S and T sold personal property, with the assent of its owner, took bonds from the purchasers in their own names, collected a part of the purchase money, proffered themselves ready to account for such sales, made a return thereof as trustees, a court of equity will infer some conventional arrangement between the parties, in the nature of a trust, which may be enforced in that court.

A court of equity must always decree upon the allegations in the bill of the complainant, and it is not justified in going beyond them. As where he relies upon trusts in certain deeds, and complains of a violation of those alone, though the facts admitted by the defendant disclose the existence of other trusts, for which they are responsible to the complainant; yet that court cannot decree for such other rights--they must be reserved for future consideration. In order, however, to do justice between the parties, where the trustees were bound to pay debts, the court will infer, in the absence of express proof, that the debts paid by them, after the receipt of money from the trusts not charged in the bill, were in fact paid out of such receipts.

Where one trustee purchases a part of the trust estate, for which he was to pay at a stipulated period, and his co-trustee, under the circumstances, being jointly responsible with him for the principal, there is, of course, a joint responsibility for the interest.

Co-trustees are bound to know the receipts, and watch over the conduct of each other. Where one trustee received trust funds applicable to outstanding debts which he did not pay; nor did he keep such funds separated from the mass of his estate, a co-trustee, who from his situation must have known of such receipts, yet makes no effort to obtain them or have them applied, is jointly chargeable for interest with his associate.

Where trustees transcending their powers, make investments in unproductive property, they are chargeable with interest.

Where property is conveyed to trustees, to be sold for the payment of debts, and the surplus to be invested in stocks to produce interest, which interest is specifically appropriated by the terms of the conveyance; the proceeds of such estate being in hand, it was the imperative duty of the trustees, to have invested, unless a portion, or the whole, had been demanded by acknowledged debts; and where hopes were entertained by the trustees, that a claim, then depending in court, would be perpetually enjoined when it had been litigated for several years, and no reasonable expectation of a speedy close, they were not justified in laying by the money, and waiting the event of a protracted chancery suit. In such a case, the trustees were grossly negligent, and they must pay interest.

Compound interest will be allowed where a trustee is directed to invest funds, and to re-invest the dividends; or where the trust directs an accumulation, and the trustee has used the funds; yet the ground of this allowance is the actual or presumed gain of the trustee by the use of the funds. Where the circumstances forbid the presumption of gain by the trustee, it will not be allowed.

To trustees who have invested, or made efforts to invest, trust funds, a rest of six months on their receipts, without interest, will be allowed as a reasonable time within which to invest; but where they manifested no disposition to make such an application of their receipts, as the trust contemplated, no such rest is allowed.

It is general rule, that an answer responsive to a bill, is evidence for the respondent; but the answer of a defendant, when it asserts a right affirmatively, in opposition to the plaintiff's demand, is not evidence.

An answer will not support a matter set up in avoidance, or discharge, where the matter of avoidance is a distinct fact; in such a case, the defence must be proved.

On a general bill to account, the answer is no evidence of disbursements; such a bill is nothing more than a demand on the defendant, to shew his receipts, and the legal sufficiency of his expenditures.

In all cases, where a complainant seeks a discovery and relief, and to make out his case, applies himself to the conscience of the defendant, if in his answer the liability is once admitted, there can be no escape from it, but by proof; though every thing which he says with regard to the creation of that liability, must be taken together.

By an equitable construction of, and by analogy to, the statutes of this state, allowing commissions to executors, guardians, and trustees, under judicial sales, commissions may be allowed to conventional trustees, though there was no agreement between the parties to that effect.

Where the chancellor's decree was entirely reformed in the appellate court, each party was decreed, in a case of cross appeals, to pay their own costs in that court.

The auditor's report may be excepted to in the appellate court, and the whole accounts gone into, whether general or special, or no exceptions had been taken to it in the court of chancery. 

COUNSEL:
In the argument of the two appeals the four first points were raised by the appellants' counsel, on the first appeal, as to the law arising thereon, and the remaining points by the appellants' counsel on the second. We number them in succession for the [**41]  purposes of this report.

1. The appellants (S. and T. R.) ought not to be charged on account of the Hopewell estate with more than they received for the same; or if so charged, they are entitled to the full benefit of the bond of indemnity.

2. Samuel Ringgold is not responsible for the trust fund which came to the hands of Tench Ringgold, his co-trustee.

3. The charges of interest against S. and T. Ringgold are objected to.

4. The trustees were entitled to more commission than was allowed to them by the decree of the Chancellor.

5. The answers of the defendants are not per se, any evidence for them; but they are bound to sustain all their disbursements (except those which come under the head de minimis,) by proof, as much so as the complainants are bound to offer proof of the amount of trust property which came into their hands.

6. Interest is to be charged on all receipts from their dates, as the trustees never invested, and never intended to invest. If a rest of six months be allowed, they are then chargeable with compound interest, or interest on the annual balance of principal and interest.

7. No provision having been made for allowing to the [**42]  trustees any compensation or reward for their trouble, this court is not competent to make any such allowance.

8. Tench Ringgold is not a competent witness on behalf of Samuel, his co-trustee, as he swears directly to relieve himself from responsibility in regard to the M'Mechen transaction, &c.

Wirt, (Attorney General of U. S.) Jones. Taney and Magruder, for the appellants in the first appeal, on the first, second, third and fourth points.

1. On the first point--As to the charge on account of the Hopewell estate. The sale of it as expressly proved, was made before the deed of November 1807. It was authorised by the deed of 1798, which gave to the trustees the only authority they possessed at the time of the sale to R. S. Thomas. The deed of 1798, it must be admitted, did not authorise the trustees to take other land in part payment of the purchase money. On the other hand, it cannot be denied that the contract, if it had been authorised by the deed of trust, would have been a judicious one, and beneficial to T. Ringgold's estate. In examining this question we must inquire what was the value of each tract at the time of the contract, and before the ferry property was [**43]  destroyed by the British. The latter was then of great value and every day becoming more valuable, owing to the increase of travelling between the east and south. At the time of the sale it rented for $ 2,000 per annum. What was the value of the Hopewell estate? It never rented for more than $ 1,000 with all the negroes and stock and utensils upon it. With these facts, some estimate may be formed of the Hopewell landed estate; and when, moreover, it appeared that the tenants who gave that rent did not find it a good bargain. The deed of trust authorised a sale of the Hopewell farm, and one of the purposes for which that deed was executed (the payment of judgments to a large amount against T. Ringgold) imperiously required that funds be raised though by a forced sale. The land was advertised to be sold at public sale--general notice was given--a numerous assemblage of people drawn to it, and among them all, those in the county, who, according to the proof, were likely to be disposed or able to buy. The sale failed--nobody offered even $ 16 per acre. Afterwards, however, R. S. Thomas agreed to give for it that price, and the contract was made with the entire consent of T. Ringgold, who [**44]  was present, and without opposition from any quarter. The land being now, as was rightfully supposed, disposed of, it became necessary to make disposition of the negroes, stock, &c. on the farm, as their master T. Ringgold could no longer employ them. With his consent (without it they could not have been disposed of, as the deed of 1798 did not convey personal property, and the deed of 1807 was not yet executed, if thought of) all the slaves, &c. were disposed of. It must be borne in mind that according to the proof, in order to rent the farm well, it was necessary for the owner to supply the slaves and stock which it required. After all the personal property had been disposed of, R. S. Thomas refused to take the land. What then was the situation of the trust property? Judgments to a vast amount, and each of them a lien upon the property. The judgments of Maund, which are of so much importance in this cause, bound the land; and although an injunction had been obtained, yet that injunction might at any time have been dissolved, and the trustees, being securities in the appeal bond, would be bound to pay the money. It is in this, most embarrassing state of things, that the trustees are [**45]  called upon to listen to the second proposition of R. S. Thomas. And what is that proposition made by a man who had been importuned to take, and refused to take this land at $ 16 per acre? To agree to take the land valued at $ 25,000, provided only that the trustees would take in part payment the ferry property, to be valued at $ 18,000, and he to secure the payment of $ 7,000, the balance of the purchase money, and the interest of which is almost equal to the rent of the Hopewell farm, after deducting from the highest sum for which it ever did rent, only legal interest upon the proceeds of the sale of the personal estate, which the tenant took with the land. The trustees are called upon to accept of, or refuse the offer. They do not act hastily. T. Ringgold, the only person, except the creditors, who had a right to object, approves of it, and has again and again sanctioned it. One of the defendants in his answer states, that T. Ringgold's wife, whose consent was not at all necessary, also approved of it. The sale, and the terms of sale, were sanctioned by the man who had a right to object; and never objected to by any human being, until the filing of what is called the supplemental [**46]  bill in this cause; and not disaffirmed in that, even if the complainants had any right to object to it. Reliance may be had on the partial account exhibited by the complainants, and which they say was rendered to them by S. Ringgold. This partial account is a particular account of all the property which came to the hands of the defendants, in which any part of the family of T. Ringgold had any interest. It includes not merely the property which was conveyed to them by the deed of 1807, and in which the complainants, at the time of the filing their bill, had any interest, but also the property disposed of by them under the deed of 1798, in which the complainants, in the character in which they originally sued, had no interest. It contains also the legacy of Mrs. Mary Ringgold, of a debt due to her from S. Ringgold, a debt due from Tench Ringgold, and also the personal property on the Huntingfield estate, which she left to the defendants, in trust for such of the children of T. Ringgold as they might select, and with the express condition that no part of it should be answerable for his debts. And yet it is contended, that this very property, thus bequeathed by Mrs. Ringgold, ought to [**47]  be considered a part of the trust property held under the deeds; and ought to be considered a part of the funds for the payment of T. Ringgold's debts--that these trustees ought to violate the trust created by Mrs. Ringgold for the benefit of the complainants. But S. Ringgold offered to take the ferry property at its valuation, if the family of T. Ringgold objected to the arrangement. In the first place S. Ringgold could make no offer by which the co-trustee could be bound. But if he could, when did T. Ringgold, or any member of his family, object to the contract with R. S. Thomas, or allow them to treat the ferry property as their own? Subsequent events, not to be foreseen in 1807--the war with Great Britain, the famous exploit of Admiral Cockburn, and destruction of the houses at the ferry, greatly lessened the value of this property, and might have furnished a cestui que trust, with a reason for disaffirming this contract. But it would then have been too late, even if then, which is not the fact, any person had immediately objected to the contract. We need not, however, rest upon the circumstance, that the offer of S. Ringgold was conditional. What if there was uncontradicted proof,  [**48]  that both of the defendants intended; at the time the contract was made with R. S. Thomas, to take the deed for this property to themselves, and to hold it as their own? By the terms of the contract it was to be paid for with trust funds. The consideration of it was a part of the proceeds of sale of the Hopewell farm; and although the defendants had determined to make this a part of their own private estate, and to charge themselves with the whole sum for which Hopewell sold, yet equity says, that even in that case it shall rest with the cestui que trust, whether it shall be the private property of the trustees, or a part of the trust estate. And T. Ringgold, the cestui que trust, has always claimed it to be a part of the trust fund, and insisted that the trustees should not charge themselves with the price at which Hopewell sold, and take to themselves this property. This, it is in proof, he had decided to do, before the deed of 1807. No matter then what was the intention of the trustees; it depended not upon their intention, but upon the sovereign will of the cestui que trust, if declared within a reasonable time, whether this should be the private property of the trustees, or a [**49]  part of the trust fund; and it being in proof, that T. Ringgold immediately (before the complainants had any interest in the estate,) at the very time the contract was made, claimed it, and said it should be considered as part of the trust estate, the trustees could not claim it, but held it in trust; and so holding it, it passed by the deed of 1807, which was but a new declaration of trusts, and which alone could give the complainants originally, a standing in the court of chancery. Assuming then that the deed of 1798 did not authorise the contract with R. S. Thomas, it is contended, that it is now too late to impeach it. It is no breach of trust, if the trustee acts with the cestui que trust, or he acquiesces. 2 Com. Dig. tit. Chancery, (4 W. 32,) 722. Langford vs. Gascoyne, 11 Ves. 333, 335. Parkes vs. White, Ib. 225. Newl. on Cont. 467. Trafford vs. Boehm, 3 Atk. 444. Brice vs. Stokes, 11 Ves. 324. Fellows vs. Mitchell & Owen, 1 P. Wms. 81. It cannot be impeached in this suit, because R. S. Thomas is no party. He had notice of the trust, and the deed to him referred to the deeds which gave the trustees the right to sell. If a purchaser has knowledge of the trust deed under which [**50]  he purchases, he becomes himself a trustee. Murray vs. Ballou, 1 Johns. Ch. Rep. 575. Selby vs. Alston, 3 Ves. 341. 2 Fonbl. 153, 154, 155. 2 Madd. Chan. 103. 1 Madd. Chan. 364, 365. The complainants, if they choose, have a right to disaffirm the contract with R. S. Thomas, and claim the property sold to him. They may perhaps, ask that the sale be set aside; but they cannot claim a right to sell to the trustees, who never agreed to buy, and to make them pay an extravagant price for the land.

Again--If these points be in favour of the complainants, yet T. Ringgold gave to the defendants a bond of indemnity. He, the cestui que trust, claimed the ferry property, purchased, as must be admitted, with trust funds, and that the trustees might not be prejudiced, gave them a bond to save them harmless against all loss. If they are to be charged, then, with any loss sustained by them in consequence of this contract with R. S. Thomas, they have a right to resort to a part of the fund in the court of chancery for their indemnity.

To understand this case it is only necessary to observe, that from the record it appears that in the year 1798 T. Ringgold was entitled to a large real and [**51]  personal estate, and at the same time was indebted to a considerable amount. He is induced to execute a deed of trust, and thereby subjected to the trusts therein mentioned, not all of his property, but his real property, reserving still to himself, absolutely and exclusively, the jus disponendi of the whole of his personal estate--negroes, debts, money, stock, and every thing but his land. The trusts declared in the deed are simply to pay all debts, of whatever description, then due; and secondly, the residue to be at his absolute disposal. His wife is mentioned in it, but she is mentioned in order to secure to her, in the event of her surviving her husband, precisely what the law gives to her, without the consent of her husband. It is under this deed the sale of Hopewell was made, and of course no person, who could not claim to be a cestui que trust, had a right to impeach that sale. In 1807 a second deed was executed; and in this deed, for the first time, provision is made for the wife and children. This deed too conveyed, in addition to the land not already disposed of, all "his negroes, stock, horses, and plantation utensils," still reserving to himself the privilege of disposing,  [**52]  when and to whom he pleased, of all his money, bank and road stock, and all debts then due to him. The personal property at Hopewell had been previously sold, and the amount of sales constituted a portion of the debts due to him. The $ 7,000 due from R. S. Thomas did not pass by the deed of 1807, and has not been claimed by the creditors under that deed. Over all this fund, and especially the proceeds of sale of the personal estate at Hopewell, T. Ringgold had an absolute control, and this alone is an ample fund for the indemnity of the trustees. If then the trustees are to sustain any loss in the settlement of the account for the sale of the Hopewell estate, upon what principle of law or equity are they to be deprived of the indemnity thus secured to them? Not because there is no fund, to which they can resort, because here is a fund, of which the owner retained an entire disposal, and quite sufficient for their reimbursement. Not, surely, because this fund ought to be applied to the payment of the debts, as such a doctrine is a glaring outrage upon every principle of right. It would be to strip a man of his property against his will. He provides by deed for the payment of his debts,  [**53]  and for the support of his family. He is to judge what property shall be conveyed by that deed; and for any such purposes he does not choose to transfer money, bank stock, or debts due to him. Could the court of chancery alter his deed, and subject to any of the trusts property which it was not his pleasure to subject to any of them? For the benefit of his creditors, and of his family, he places his lands, his negroes, &c. beyond his control. They are made by the man, who alone has authority to dispose of them, to be the sole fund--1st. For the payment of debts; and 2d. To provide for the support of himself and family. Of all the rest of his property, (if that conveyed by the deed of trust be sufficient to pay debts, even although the residue afforded a miserable support for his family,) he has a right, so courts of law and equity must say, to dispose as he pleases. To appropriate this property not included in the deeds of trusts, (and the disposition of which the grantor reserved exclusively to himself,) to any of the purposes of the trust deed, would be a downright violation of the right of property--the exercise of a power by the court of chancery which no department of government [**54]  can possess in a free country. He had a right to give away this property, and so far as he yet retained the ability, he had a right, not only to sanction the sale made by his trustees, but to oblige himself to indemnify them from any damage which they sustained by reason of a disaffirmance of their sales, by creditors, or others, if others there were to impeach their conduct.

To deprive the defendants of the indemnity on which they rely, it cannot be said that T. Ringgold is to be treated as a person non compos, or from circumstances incapable of acting freely. It would be a violation, not merely of established law, but of common justice, that such charges should be listened to in argument, when all mention of them is studiously avoided in pleading. No one act of T. Ringgold is complained of--no settlement is impeached--no contract, into which he ever entered, is attempted to be set aside. So far from this, the complainants claim under his deeds as valid. They insist that he could dispose of his property. They insist moreover on the deed of 1812, which gave to them their standing in the court of chancery. If any such charge had been properly made, the record affords the most ample [**55]  refutation of it. As to the acquiescence &c. of T. Ringgold, they cited Brice vs. Stokes, 11 Ves. 319. Langford vs. Gascoyne, Ib. 336. Trafford vs. Boehm, 3 Atk. 444 As to his competency, &c. they cited White vs. Wilson, 13 Ves. 88, 89. Attorney General vs. Parnther, 3 Bro. Ch. Rep. 442.

They insisted that it must be either fraud or supine, and very supine negligence, that induces a court of equity to deal rigorously with a trustee. Caffrey vs. Darby, 6 Ves. 495. Bovey vs. Smith, 1 Vern. 144. Where a trustee conducts himself to the best of his judgment, the court will deal with lenity towards him. Belchier vs. Parsons, Ambl. 219. Powell vs. Evans, 5 Ves. 843. Trafford vs. Boehm, 3 Atk. 444. If the trustees had the right to take the ferries in exchange for Hopewell, then the admission of S. Ringgold was a mistake on his part and is not binding on him. Lansdown vs. Lansdown, Mos. 364. Lammot vs. Bowly, 6 Harr. & Johns. 500.

2. On the second point. In 2 Fonbl. 184, the general rule is laid down as to the liability of one trustee for the receipts of the other. He who wishes to get rid of a general rule must show the exceptions to it. The chancellor in his decree says that Samuel [**56]  is to be charged, because he suffered Tench to misapply the trust fund. This was not the business of Samuel. He had no right to call upon Tench, nor Tench upon him. Trustees have all equal power and authority. 2 Fonbl. 184. The deed of 1798 was to secure a debt due to Tench, and to indemnify him for becoming one of the sureties of Thomas. How then could Samuel call upon Tench? An equal trust was reposed in both; and neither could control the other. If Tench abused the trust the cestui que trust might have applied to the court of chancery for his dismissal. The deed of trust executed by Tench to Samuel is to secure the latter against loss. If the complainants have any claim against Tench, they may resort to that deed; but they have no right because of that deed to call on Samuel in this suit. On this point they referred also to Brice vs. Stokes, 11 Ves. 319. Hovey vs. Blakeman, 4 Ves. 606. Bacon vs. Bacon, 5 Ves. 331. Chambers vs. Minchin, 7 Ves. 199.

3. On the third point. The case relied upon by the auditor, of Dunscomb vs. Dunscomb, 1 Johns. Rep. 508, to justify the charge of interest on all monies received after six months, is not in point. There nothing was to be done but [**57]  to invest. In this case, before the trustees were authorised to invest one cent, they were bound to ascertain and pay all just debts, and contest those which were deemed unjust. It is in proof that there were debts of this description. Maund had recovered two judgments in the general court, one at May term 1798, and the other at May term 1799, each for £  1250, with interest from the 26th of July 1796, and costs. This claim was to be resisted, and was resisted in equity by T. Ringgold. It related to a sale made by Maund to T. Ringgold, of a parcel of land in a distant part of Virginia. The proof of the alleged fraud was to be obtained therein. Persons were to be discovered who would consent to act as commissioners to take testimony. Surveys were necessary, and to be made when it suited the convenience of surveyors to undertake them. Pending the suit in the court of chancery, the war with England broke out. Maund died, and new parties were to be made; and owing to these and other difficulties in the way of a decision, a final decree was not passed until March term 1818. We may well suppose that the defendant in that case was urgent for a decision, and would admit of no unreasonable [**58]  delay. If it be charged that the complainant procrastinated it, or the trustees, it is apprehended that the record would show to the contrary, if it were necessary. It is not necessary, because no such charge is made in the bill; and the trustees are not chargeable with any breach of trust not charged in the bill. Smith vs. Smith, 4 Johns. Ch. Rep. 281. After the decree of the court of chancery the defendant appealed, and the decree of this court, affirming the decree, was passed at June term 1821. We think that while this case was pending the trustees were not authorised to invest any of the monies in their hands. We do not mean by this to say, that a disputed claim of a few hundred dollars would have justified the trustees in refusing to invest many thousands, or that this suit gave them a right to retain in their hands more than was sufficient to pay the debt, interest, costs, and all reasonable expenses. It cannot be contended that the trustees were bound to know what would be the fate of the suit against Maund. They were utter strangers to the contract, and the subject matter of it. They could not tell what would appear in proof. They could only know with certainty that judgments [**59]  for large sums of money had been obtained at law against T. Ringgold; that these judgments were a lien upon the whole of the real estate which had been conveyed to them in trust, which they had sold, and for which they had received the purchase money. That while the case was pending in chancery, the injunction might at any time be dissolved; and unless the money be immediately paid, the creditor could issue out his executions, and levy them upon the property sold, as well as the property of the securities in the appeal bonds. The issue of the suit in chancery being doubtful, the period of its decision equally so, whence the right of these trustees to make any investment of the funds, which by the express terms of the deed of trust were to be applied in the first place, and before any investment, to the payment of the debts then due, and of course Maund's, unless chancery would grant a perpetual injunction? Will it be said that the court of chancery could have authorised it? Can any man, by executing a deed of trust, though for the benefit of creditors, destroy a lien which an individual creditor had upon his property, and oblige him to acquiesce in the sale of that property, and wait [**60]  for his money until the trustee can sell out stock, which he has purchased? Suppose in this individual case that the money had been invested, whether by or without the authority of the chancellor, and that the injunction being dissolved, the creditor had proceeded to levy upon the land; would the chancellor have granted another injunction to stay the sale until the money invested could be converted into money? If the trustees were bound or at liberty to invest, then they were to invest according to the deed, which authorised an investment in road stock, stock of the City Bank of Baltimore, or other bank stock; and what might have been the value of such investment we can easily ascertain. It was their duty, so it is argued, to invest; and if so, as they were authorised, they possibly might have invested in some of these funds which have so much depreciated in value. And if they had so invested, even by the mere express authority of the chancellor, and a decree had afterwards been pronounced in favour of Maund, will any man say they could have excused themselves for the loss of the funds, by alleging that they had invested the funds in stock now worth little or nothing, and therefore [**61]  must be excused from the payment of the claims? Would they not have been charged with a breach of trust in investing without any authority to be found in the deed, funds which belonged to a creditor? Who will affirm that the court of chancery, even after expressly authorising the investment, could have shown any mercy to the trustees? A trustee may be compelled to pay interest--in some cases compound interest. But in what cases? Where the trustee makes profits, and will not render an account of them. Evertson vs. Tappen, 5 Johns. Ch. Rep. 517. Where the deed creating the trust directs investments of the interest, and this is not done, compound interest is charged. Raphael vs. Boehm, 11 Ves. 92. S. C. 13 Ves. 407, 411. And this because such is the law created with the trust. Darne & Gassaway vs. Catlett, 6 Harr. & Johns. 475. The judgments obtained by Maund might be considered, until the year this court decided the case, a claim existing against T. Ringgold, and possibly to be paid out of the trust fund. In support of the position that interest is not to be charged pending that suit, it is only necessary to refer to the case of Newton vs. Bennett, 1 Bro. Ch. Rep. 359. There the true [**62]  principle, by which courts are to be governed, is laid down. In that case it will be found that Bennett did not take necessary steps to settle the estate. He retained money in his hands for several years. In 1760, the claim against the estate was compromised. "Till then, (says the chancellor,) it does not appear that Bennett kept the money in his hands without a cause, there being an outstanding demand." While there was a cause for keeping the money in his hands, while there was an outstanding claim, the chancellor at once decides that he is not to pay interest. "From 1760 the question is, whether he shall pay interest, having applied the money in the course of his trade." And from 1760 he was ordered to pay interest. According to this decision, while the demand of Maund was outstanding, the trustees did not retain the money in their hands without cause, and they are not to be charged with interest. It may be cited to prove that the complainants are entitled to interest from the decision of this court in Maund's case, as the trustees did not then invest; but the answer to this is, that before that decision, T. Ringgold was dead--the new bill had been filed, and the administratrix,  [**63]  and all persons having any claim to the estate, filed another bill, claiming the estate as it was, and insisting, not that it should be invested, but that it should be delivered up to them. From that time the trustees did not resist the claim, but consented that an account should be taken, and the trust settled up. On this point they referred also to Littlehales vs. Gascoyne, 3 Bro. Ch. Rep. 73. Franklin vs. Frith, Ib. 433. Tew vs. Earl of Winterton, 1 Ves. jr. 450, 451. Pybus vs. Smith, Ib. 193. Bruere vs. Pemberton, 12 Ves. 385. Langford vs. Gascoyne, 11 Ves. 333. Rocke vs. Hart, Ib. 59, 60. The mere act of co-operation does not charge a co-trustee with interest. Bacon vs. Bacon, 5 Ves. 331. Chambers vs. Minchin, 7 Ves. 192. Langford vs. Gascoyne, 11 Ves. 334. Shipbrook vs. Hinchinbrook, 16 Ves. 478. Brice vs. Stokes, 11 Ves. 324.

4. On the fourth point. In England a per diem is allowed to trustees for their trouble, &c. but that is not the rule here. The practice in our court of chancery is to allow a certain sum of money by way of commission. In the execution of this trust, the trustees have had a great deal of trouble, and the compensation to be allowed to them does not come [**64]  within the rule as now established in chancery.

Berrien, Hoffman, and Mayer, for the Appellees, in the first appeal, on the first, second, third and fourth points.

1. On the first point. The alleged exchange of Hopewell for the ferry property, was dehors the powers of the trust, and wholly illegal. 1. This was no technical exchange, even had the trustees possessed the power to exchange. Shep. T. 295. Co. Litt. 31, s. 319. If this transaction rested only on the deed of 1798, Mrs. Ringgold would have dower in the ferry property, as well as in Hopewell. Cass vs. Thompson, 1 New Hamp. Rep. 65. 2. The sale or exchange was too hasty. Ex parte Bennett, 10 Ves. 393. Hart vs. Ten Eyck, 2 Johns. Ch. Rep. 110. 3. The ferries were not trust estate. Tafford vs. Boehm, 3 Atk. 440. A trustee cannot, even without mala fides, invest in a fund not sanctioned by a court of equity. If the court does not adopt the fund, the trustee must bear the loss. Hancon vs. Allen, 2 Dick. 498. A trustee, guardian, &c. cannot, without special power, change the nature of the estate from money into land, or e converso; or a lease for years into a freehold. Witter vs. Witter, 3 P. Wms. 100, (and notes.) Terry [**65]  vs. Terry, Pre. in Chan. 273. Mason vs. Day, Ibid 319. Pierson vs. Shore, 1 Atk. 480. Rook vs. Warth, 1 Ves. 461. Audley vs. Audley, 1 Dick. 16, 45. 1 Ves. jr. 35. 6 Ves. 487. 4. The value of Hopewell must be fixed at $ 20 per acre. When a trustee displaces, destroys, or unduly converts trust property, chancery will give to the cestui que trust the extreme value of it, analogous to the rule of law of giving, in trover, the highest value, unless the article be shown to be certainly of less value. Amory vs. Delamiere, 1 Stra. 505. As the trustees declined to ascertain its value by several offers, and have thereby rendered it extremely difficult to say what it was really worth; as it might have brought at some subsequent period, even $ 30 per acre, the complainants are entitled to the highest value, even on the principle of confusion, mixture, &c. of trust, with private estate, as settled in Lupton vs. White, 15 Ves. 439, 440. Attorney General vs. Fullerton, 2 Ves. & Bea. 263. Earl Powlet vs. Herbert, 1 Ves. 296. Forrest vs. Elwes, 4 Ves. 491, 497. Pocock vs. Reddington, 5 Ves. 794. Harrison vs. Harrison, 2 Atk. 121. Hart vs. Ten Eyck, 2 Johns. Ch. Rep. 62, 116, 117. 5. None of the expenditures [**66]  on the ferries can charge the trust estate. Bostock vs. Blakeney, 2 Bro. Ch. Rep. 653, 656. Green vs. Winter, 1 Johns. Ch. Rep. 27, 39. 6. Wherever the trust is violated, the cestui que trust is entitled to all the gain, if there be any, and an exemption from loss, if there be any. Adye vs. Fenilletean, 1 Cox, 60, 63, and the authorities before cited.

The trustees are not entitled to any benefit from Thomas Ringgold's sanction or approbation of the conduct and accounts of the trustees; that independently of various known principles, flowing from the relation of trustee and cestui que trust, he was, in fact, incompetent so to do, from the infirmity of his mind, which rendered him non sui juris, and which was the very causa et origo of the trust. Neither to the whole amount, nor any part thereof, can Thomas Ringgold's sanction protect the defendants from legal scrutiny, and liability to make full redress. 1 Pothier on Oblig. 29, 30. Newl. on Cont. 362, 433, 445, 451, 459. Portington vs. Eglington, 2 Vern. 189. Sugd. 401. Gibson vs. Geyes, 6 Ves. 226. Huguenin vs. Baseley, 14 Ves. 273. Villars vs. Beaumont, 1 Vern. 100. Smith vs. French, 2 Atk. 243. Newman vs. Payne, 2 Ves. 199.  [**67]  Duke of Hamilton vs. Lord Mohun, 1 P. Wms. 118. 3 Wood. Lect. 453. Wells vs. Middleton, 1 Cox, 112. Morse vs. Royall, 12 Ves. 374. 4 Desauss. 704. Stanhope vs. Topp, 2 Bro. Ch. Rep. 183. Murray vs. Patmer, 2 Scho. & Lef. 474. Matthews vs. Dragaud, 3 Desauss. 25, 26, 27. Green vs. Winter, 1 Johns. Ch. Rep. 35, 36. Wendell vs. Van Renssellaer, Ibid 344. They then argued, that the liability of the trustees as to Hopewell, was to be determined under the terms of the deed of trust of December 1807; but that, if that deed was not to be the rule of their responsibility, then that even under the deed of 1798, Thomas Ringgold had no power left of disposing of Hopewell, or sanctioning the exchange of it for the Ferries; and to maintain this position, they discussed the limitations of the deed of 1798, in reference to the quantity of estate under it in Thomas Ringgold, and the principles of the rule in Shelly's case.

They argued, that there was no fund whatsoever in the hands of the trustees, of which Thomas Ringgold had any control, and to which his sanctions were applicable; that the bonds and securities derived from Benjamin Ringgold's trust administration, were comprehended under the [**68]  term of equitable estate in the deed of 1798--but that at all events those securities were realized long before the sanctions of Thomas were given, and the avails applied or applicable to payment of Thomas's debts, so that there was no control in Thomas, over these funds, at the time of his sanctioning the accounts of the trustees; and even to the extent of those avails, the sanctions could not have any effect. That in this view, it did not matter, whether the securities for the sales of Thomas's land, that came into the hands of the trustees from Benjamin, passed them under the deed of trust of 1798.

They also argued, that the personal estate on Hopewell, and Huntingfield, was to be deemed as sold under the deed of December 1807, as to the liability of the trustees; and even if that were not so, the trustees were to be held liable for it in consequence of their admissions respecting it, and blending it with their accounts of assets and payments, as trustees.

2. On the second point. The trustees are jointly, as well as severally responsible for all monies, property, &c. received by them, or either of them. And if not so a priori, yet they have become so from the circumstances [**69]  attending their administration of the trust. The distinction between executors and trustees, in regard to their responsibility in solido, is fully admitted; but the law has too firmly settled and defined the principle of the joint liability of trustees, to admit of its being at all affected, by the well known distinction between executors and trustees. But admitting its fullest force, it has no application whatever to trustees, except where the conduct of the trustee, claiming an exemption, has been strictly within the bounds of his trust duty, and where the delinquent trustee was in no way facilitated by the acts or omissions of his companion. This principle will be found to pervade all the authorities, and to afford the true key which ascertains the liability in solido of trustees, and is a principle wholly independent of the one which ordinarily implicates executors, and exempts trustees. The received law on the subject is, that trustees and executors, prima facie, are equally responsible, virtute officii, for all monies, &c. received on account of the trusteeship or administration. But where, in point of fact, only one has received money, &c. there is generally a difference between [**70]  executors and trustees as to the evidence which implicates them in solido. For executors need not join in any receipt, or conveyance; they are competent to act separatim. Trustees, on the contrary, are expected to unite in receipts, and must join in conveyances. Hence, if executors unite, they are both liable at law, though one only may have received the money. At law, there is a presumptio juris et de jure, that they both received it, and therefore both liable; but in equity, the facts may be inquired into, and they be charged jointly or severally, according to circumstances. A joint receipt or conveyance, however, even in equity, raises a strong presumption against both, be they executors or trustees; but even in the case of executors, it is not conclusive in equity. Trustees, on the other hand, do not at law, or in equity, materially increase the presumption of joint responsibility by uniting in receipts, because they are expected so to do, even when, in fact, they do not jointly receive the money. As the doctrine has been modelled, and fully established, there appears to be little or no distinction in equity between trustees and executors. The distinction between executors and [**71]  trustees, in this respect, never did extend further than as it was a mere question of evidence, arising from their jointly receipting. The inquiry, now, in either case, is not so much in relation to joint receipts, &c. as it is into the various acts of co-operation, omission, undue confidence, and untrustworthy conduct on the part of that trustee, or executor, who claims an exemption. If, therefore, a trustee or executor, by any act, omission, supine negligence, or undue confidence, abandons any portion of the fiduciary estate to his companion, so as to tend to its jeopardy or final loss, this per se is a breach of trust, and subjects such trustee or executor to all losses consequent on such crassa negligentia, without any regard to acts of direct co-operation, such as receipts, conveyances, &c. &c.; and all the modern authorities have uniformly charged trustees, in solido, under the auspices of this principle. But we fully admit, that if one trustee, ex mero motu, and without the concurrence or neglect of his companion, secures and wastes a portion of the trust fund, the innocent trustee is not responsible for his defalcations, and this too, even though there has been joint receipts [**72]  and joint conveyances. This case may be safely reposed on this liberal view of the doctrine of joint and several liability. No case can be found which exempts a trustee, merely because he received no portion of the wasted estate. Both law and equity requires a further scrutiny, and the received doctrine is, that the only important inquiry is, whether the companion who wasted the estate was in any degree facilitated therein by the acts or omissions of the other; if so, they are both equally liable. All the authorities now concur that the inquiry is not as to the evidence of the existence, or non-existence of joint receipts or conveyances--this being a mere prima facie evidence of responsibility in solido; but the fact to be ascertained is, whether one trustee has suffered another to obtain such an exclusive control, as enabled that trustee to violate the trust. In such case, they are both liable, one as the receiver and destroyer of the trust estate, the other as the passive means of the mischief which has been done. Hence, if a trustee joins in receipts, &c. he may still be exempted; and if he does not join, he may still be charged. The nature of the trust also is very material to [**73]  be inquired into. Whenever the trust is directory, and not discretionary, they are bound to see to each other's acts. The counsel for respondents were ever willing to lose sight of this important principle. The trustees were expressly bound to invest, and in specific funds; they jointly invested in different funds, and also jointly omitted to invest the balance in any fund. Negligence, and a non-performance of prescribed duties, is the controlling circumstance which ascertains the liability in solido. Trustees are always liable, in solido, for the acts of agents, if they are not expressly authorised to appoint agents. If, therefore, Samuel constituted Thomas his agent, as he says he did in the M'Mechen transaction, or if he permitted Tench to assume an exclusive control of any portion of the estate, he thereby constituted him an agent, and both are responsible in these cases, for any losses that may arise. Samuel never was in advance, except by reason of his own gross negligence in permitting Tench to violate every principle of the trust; and after the mischief was done, Samuel, conscious of his neglects, omissions, and untrustworthy acts, and that he must respond for Tench, received [**74]  from him an ample indemnity. But if the facts of the case be inquired into, the question of joint and several responsibility, even if decided in favour of the respondents, would cover but a small part of the case--because there are but very few transactions in which they did not unite, and positively participate, which would render them responsible even on the most favourable application to the respondents, of the doctrine in controversy--so that quacunque via data, they are liable in solido. But the law is now fully settled. In all of the cases, when cautiously examined, from the case of Townley vs. Chalenor, Cro. Car. 312, down to Monell vs. Monell, 5 Johns. Ch. Rep. 283, it will be found that the courts have been gradually advancing to the positions we have laid down; and the many moot points of distinction between joining and not joining in receipts, &c. between the liability at law, or in equity; between the responsibility in solido of executors, and not of trustees; between the claims of creditors on executors, or legatees on executors, &c. &c. have all, in succession, been nearly abandoned, and the plain, elementary doctrine of all courts now is, that they will look to the conduct [**75]  both of trustees and executors, and if the loss be the fault entirely of one, he alone shall respond; but if it be the result of the acts, omissions, gross negligence of the other, they shall both equally respond. It never was decided, that if one only reaps the fruits, or receives the money, after a joint breach of trust, both shall not respond; but the true distinction is as just stated, viz: that wherever any one, acting in a fiduciary relation, permits his companion to exercise any control over the trust fund, inconsistent with the obligations of both, (and whether there be an agreement to that effect, or a mere supine negligence, is immaterial,) they both are liable in solido. Hence, the fact of receipting jointly is a mere item of evidence, even in the case of executors, and the main inquiry is not even who received the money, but whether there has been any acquiescence in one, after he knew, or ought to have known, that the trust money, &c. had got into a course of abuse." Nor is it at all requisite, in order to charge both for the defalcations of one, that there should be any fraud, sinister motive, or profit in the trustee who claims exemption.

Admitting then the fullest [**76]  force of the general distinction between co-executors, and co-trustees, the whole current of authorities sustain the positions advanced. They then cited Churchill vs. Hobson, 1 Salk. 318. S. C. 1 P. Wms. 241, (and note.) Townley vs. Calenor, Cro. Car. 312. S. C. Bridg. Rep. 35. Fellowes vs. Mitchell & Owen, 1 P. Wms. 81. S. C. 2 Vern. 504, 515. 21 Vin. Ab. 583, pl. 2, 8. Murrill vs. Cox & Pitt, 2 Vern. 570. Westley vs. Clarke, 1 Eden's Rep. 356; and 1 P. Wms. 83, (note.) S. C. 1 Dick. 329. Townsend vs. Barber, 1 Dick. 356. Leigh vs. Barry, 3 Atk. 583. Gill vs. Attorney General, Hardres, 314. Charitable Corporation vs. Sutton, 2 Atk. 404, 405, 406. Boardman vs. Mosman, 1 Bro. Ch. Rep. 68. Sadler vs. Hobbs, 2 Bro. Ch. Rep. 116. Scurfield vs. Howes, 3 Bro. Ch. Rep. 90. Keeble vs. Thompson, Ib. 112. Baldren vs. Scott, 2 Ves. 678. Hovey vs. Blakeman, 4 Ves. 506, 603, 608. Caffray vs. Darby, 6 Ves. 487. Chambers vs. Minchin, 7 Ves. 186, 196, 199. French vs. Hobson, 9 Ves. 103. Lord Shipbrook vs. Lord Hinchinbrook, 11 Ves. 252. S. C. 16 Ves. 476. Brice vs. Stokes, 11 Ves. 318, 319. Langford vs. Gascoigne, Ib. 333. Adair vs. Shaw, 1 Sch. & Lef. 340. Doyle vs. Blake, 2 Sch. & Lef. 229, 237,  [**77]  242. Townshend vs. Baber, 1 Dick. 156, 356. S. C. Bridg. Rep. 38. Underwood vs. Stevens, 1 Meriv. 712. Westley vs. Clarke, 1 Eden, 357. Anonymous, 12 Mod. 560. 21 Vin. Ab. 525, pl. 2, 3, 4. 2 Fonbl. 182, (note l,) 183. 1 Cruse's Dig. tit. 12, s. 36, 37, 39. 2 Brid. Ind. 651. s. 214, 221, 224, 238, 239, 242. Ham. Dig. 643, 297, 298, (s) (d) (u). Toller's L Ex. 485, 486. Monell vs. Monell, 5 Johns. Ch. Rep. 283. 11 Johns. Rep. 21. Munford vs. Murray, 6 Johns. Ch. Rep. 1, 452. Lenoir vs. Winn, 4 Desauss. 65, 76. 6 Mod. 93. 2 Eq. Ca. Ab. 742. 12 Mod. 573. 5 Ves. 839. 8 Ves. 363.

3. On the third point they cited Franklin vs. Frith, 3 Bro. Ch. Rep. 433. 2 Fonbl. Newton vs. Bennet, 1 Bro. Ch. Rep. 359. Treves vs. Townsend, Ib. 384. Foster vs. Foster, 2 Bro. Ch. Rep. 616.

4. On the fourth point they cited Fearns vs. Young, 10 Ves. 184.

Berrien. Hoffman, and Mayer, for the Appellants, in the second appeal, on the fifth, sixth, seventh and eighth points.

5. On the fifth point. The auditor in his report esteems the answers, as to all matters of account, as of themselves final proof, and that as to such matters the answers are simply responsive, and not, in any measure, in [**78]  avoidance. To enforce this singular doctrine, he also relies on the difficulty of the trustees getting proof, or producing vouchers after such a lapse of time. The chancellor also adopts this reasoning, and appears to have entirely misapprehended some of the clearest authorities on this point. The complainants fully admit the general rule that an answer is per se proof, and requires counter evidence of at least one witness and pregnant circumstances, but contend that this rule has no application whatever to the present case. The positions taken by the complainants are these: 1. That they have never relied, in any degree whatever, on information furnished by the answers, but on the contrary, have proved, by independent testimony, the entire amount with which they charge the defendants. 2. That the disbursements by the trustees are in all instances, except such items as postage, current expenses, and such like, to be sustained by proof, or vouchers; and that the answers, setting forth disbursements, are not responsive merely, but in avoidance, and set up claims, which must be sustained by proof; and no authority can be found which gives to an answer any operation beyond this. 3. That [**79]  no court will allow respondents to rely at all upon answers, which come reluctantly in, after all the proofs are furnished by the complainants, and they have been driven to the necessity of searching every where for evidence, without the least reliance on any light shed by the answers. 4. That where a distinct fact is set forth in the bill, and denied by the answer, or where information on a particular subject is requested by the bill, and furnished by the answer, then the answer is evidence; but a bill which merely asks for an account, is not of that nature which enables the respondents to make proofs for themselves, by stating that so much was received, and so much paid away. The books have never gone to that length, and all principles, and authorities, we apprehend, sustain a doctrine just the reverse. 5. The utmost liberality has been manifested by the complainants, in writing "admitted" on every fair and comprehensible voucher: and this was asked for by the respondents, and granted by the complainants under the idea that the answers proved nothing, and that all accounts not thus admitted, or proved by the respondents, were not fortified by the answers. 6. The cases which admit [**80]  a defendant's answer as proof for him, are always where some fact alleged by the bill is denied; and there is a clear distinction between denial and affirmation, setting up a claim, and swearing himself into a right; so also these cases distinguish between matters susceptible of proof, and such as lie, from their nature, within the knowledge and conscience of the respondent. 7. It is also to be borne in mind, that in many of the cases which allow this force to the answers of defendants, the parties were examined as witnesses on interrogatories before the master, a proceeding unknown to our practice. Such was the case of Kirkpatrick vs. Love, Ambler, 589, and many others. 8. We are also to distinguish between reading an answer in chancery, in another suit, or in a suit at law; and where it is read in equity, in the same suit--there the established doctrine is, that one part of an answer may be read against the party, without reading the other, and the complainant may select a particular admission and rely on it, and yet put the defendant to prove other facts; and the whole current of authorities sustain this. Norris' Peake's Evid. 86, (note.) Hart vs. Ten Eyck, 2 Johns. Ch. Rep. 88,  [**81]  89. 2 Poth. on Obl. 155 to 158, (and note.) 9. But even if the doctrine be enlarged for the benefit of the respondent, it never applies except where the answer is clear, satisfactory, and pointed; it never embraces general statements, schedules, &c. which do not fix the force of the oath pointedly on the particular transaction. In this point of view, Samuel's answer has no application to the M'Mechen, Wilmer's, and other transactions; nor can Tench's answer fortify Samuel's alleged disbursements. They cited Alam vs. Jourdan, 1 Vern. 161. Anonymous, 1 Vern. 282. Wickerly vs. Wickerly, 1 Vern. 470. Walton vs. Hobbs, 2 Atk. 19. Janson vs. Raney, 2 Atk. 140. Robinson vs. Cumming, 2 Atk. 410. Ouly vs. Walker, 3 Atk. 407, (2 Com. Dig. 332.) Pemba vs. Mathers, 1 Bro. Ch. Rep. 52. Kirkpatrick vs. Love, Ambler Rep. 589. Blount vs. Burrows, 4 Bro. Ch. Rep. 73. Thompson vs. Lamb, 7 Ves. 588. Ridgeway vs. Darwin, 7 Ves. 404. Lady Ormond vs. Hutchinson, 13 Ves. 47. East India Co. vs. Donald, 9 Ves. 275, 283. The leading case which establishes the sound doctrine on this subject, and which has never been repudiated, or in the least qualified, is the one which occurred in 1707, before Lord Cowper,  [**82]  and is reported by Gilbert in his Law of Evidence, 45. 3 Blk. Com. 451. The chancellor, in his decree, has passed on this case a most singular criticism, and one which, we think, is far from just. We do not perceive the least "ambiguity" in the case; for surely it does not mean that one who was dead, made a donation; or that one who was alive at the time, was then a testator. But it simply means that the defendant had, in the lifetime of his testator, received a deposit of £  1100, and that on a settlement between him, who afterwards was a testator, with him who afterwards was an executor, £  100, part of the £  1100, was given to the defendant in satisfaction of the services he should subsequently render as executor. This case is commented on, and entirely approved of by Chancellor Kent, 2 Johns. Ch. Rep. 88. That £  1100 was the entire sum deposited, was proved by the answer, but the gift of £  100 required proof aliunde. 2 Ball and Beatty, 382; Ham. Dig. 425, (a). 1 Bro. Ch. Rep. 502; 2 Com. Dig. 332; 2 Fonb. chap. 7, s. 4. An answer per se, perhaps, should never be evidence against an infant cestui que trust. Trustees ought to be compelled to keep books, take, and preserve vouchers:  [**83]  but here are thousands of dollars claimed by the trustees on no voucher whatever. Hart vs. Ten Eyck, 2 Johns. Ch. Rep. 62, 66, 86 to 94, 96, 107, 119. This case assembles nearly all the English and American cases, and the entire bearing on the subject. Green vs. Hart, 1 Johns. Rep. 589, 590. Monell vs. Monell, 5 Johns. Ch. Rep. 283, 294, &c. Parker vs. Kennedy, 2 Desauss. 37. The State vs. Penman, 2 Desauss. 1. Beckwith vs. Butler, 1 Wash. Rep. 225. Ballinger vs. Worley, 1 Bibb, 195. Paynes vs. Coles, 1 Munf. 373. Scurfield vs. Howes, 3 Bro. Ch. Rep. 90, 95. Here the answer of a co-trustee, charging himself exclusively, was not, per se, considered as evidence of the separate receipt, and liability. Miller vs. Beverleys, 4 Hen. & Munf. 422. Pollard vs. Lyman, 1 Day, 165. The Auditor vs. Johnson, 1 Hen. & Munf. 536. Heffner vs. Miller, 2 Munf. 43. Beatty vs. Thompson, 2 Hen. & Munf. 395.

The object of the trust was investment, and all that interfered with that, or retarded it, should be affirmatively and unquestionably shown. The trust fund was to be diminished as little as possible; and therefore the necessity of the payments should be shown. Payments here are in the nature of [**84]  counter-claims, on the part of the trustees, against their cestui que trusts, and, therefore, should be proved; and on that head the answer could not, in the nature of things, be deemed responsive to the bill, unless the bill had charged specific breaches in particular undue payments by the trustees. They argued this was in effect only a general bill for an account; and that it was a petitio principii to say that the answer was evidence of the payments it stated, because the bill required "a particular account of the trustees' transactions under the deeds of trust."

The answers of both of the trustees being reluctant, uncandid, unsatisfactory, and rendered only after all the proofs were obtained by the complainants, are to be received with great caution, and to be construed by the court dubiously, and with scrutiny; allowing to them much less respect and weight than might have been accorded to them, had they been in time, willing, full, and candid. Freeman vs. Fairlie, 3 Meriv. 29, 41. White vs. Williams, 8 Ves. 193. Haim. Dig. 421, s. 5; 422, (k,) 425, (a.) Green vs. White, 1 Johns. Ch. Rep. 33, 40. Hart vs. Ten Eyck, 2 Johns, Ch. Rep. 62, 107, 108. Faulder vs. Stewart, 11 Ves.  [**85]  303. Smith vs. Scarle, 14 Ves. 415. 2 Madd. Ch. 343. Hepburn vs. Durand, 1 Bro. Ch. Rep. 503. 3 Meriv. Rep. 29, 41.

6. On the sixth point. Interest is to be charged on all receipts from their dates, as the trustees never invested, and never intended to invest. That if a rest of six months be allowed, they are then chargeable with compound interest, or interest on the annual balance of principal and interest. The authorities clearly establish the following positions: 1. Trustees, executors, &c. are chargeable with simple interest wherever there were disposable funds of the estate in their hands, which the exigencies of the estate did not necessarily prevent being placed at interest. 2. If they be empowered to put money to interest, and merely let it remain idle by them, they are responsible. 3. If they have traded with the trust funds, they are not only liable to interest, but to the profits, if any, beyond the interest. 4. If they retain monies by them, hesitating what to do, they shall pay interest, as it was their duty to apply to the court of chancery for instructions. 5. Whenever the least in fault, they are chargeable in England with the highest interest, viz. 5 per cent.  [**86]  if not in fault, then with 4 per cent.--money being usually worth no more in that country. 6. Wherever their duty is prescribed, as for example, to invest, and they have neglected it, but which, if performed, would have given the cestui que trust interest upon interest, the trustees shall be liable to compound interest, or interest on the annual balances of principal and interest. 7. Formerly, interest was allowed only from the time of audit, if respondent answered freely and fully, and from the time of the bill filed, if reluctantly; now, no such distinction--but trustee is liable from the time he might have invested. Upon the subject of simple interest, they cited 10 Mod. 21. 2 Eq. Ca. Abr. 740. Parrot vs. Treby, Pre. in Ch. 254. Newton vs. Bennet, 1 Bro. Ch. Rep. 35, (and note a.) Perkins vs. Baynton, 1 Bro. C. R. 375. Treves vs. Townshend, Ib. 384. Dawson vs. Massey, 1 Ball & Beatty, 219. Tebbs vs. Carpenter, 1 Madd. C. R. 290. Forbes vs. Ross, 2 Bro. C. R. 430 Littlehales vs. Gascoyne, 3 Bro. C. R. 73. Franklin vs. Frith, 3 Bro. C. R. 433. Hillard's case, 1 Ves. 90. Young vs. Combs, 4 Ves. 103. Forrest vs. Elwes, 492. Piet vs. Stace, 4 Ves. 620, 622. Pocock vs. Reddington, 5 Ves.  [**87]  794. Rock vs. Hart, 11 Ves. 57, &c. Bruyere vs. Pemberton, Ib. 386. Ratclif vs. Graves, 1 Vern. 196. 2 Ver. 744. 1 P. Wms. 396. High. on Lunacy, 77. "The first duty of a trustee, executor, agent, receiver, &c. is to be constantly ready with his accounts, and neglect in this, charges them with interest." Heathest vs. Hulme, 1 Jac. & Walk. 122, 135. Massey vs. Banner, Ib. 250. Turner vs. Turner, 1 Jac. & Walk. 43. Treves vs. Townsend, 1 Cox, 50, (note 2.) Forbes vs. Ross, 2 Cox, 112, 113, &c. 2 Madd. Chan. 134. 2 Fonb. 184 to 188, notes (o) (p.) Mosely vs. Ward, 1 Ves. 581. Dornford vs. Dornford, 12 Ves. 127. Stock vs. Stock, 1 Desa. C. R. 193, (note.) Fox vs. Wilcox, 1 Binney, 195. Hall vs. Callaghan, 1 Serg. & Rawle, 241. Lenoir vs. Winn, 4 Desa. C. R. 71, 454. Miller vs. Beverly, 4 Hen. & Munf. 415 to 418. Quarles vs. Quarles, 2 Munf. 321, 325. Carter's Ex. vs. Cutting and Wife, 5 Munf. 223, 233. The existence of outstanding debts has never been considered as justifying trustees' omission to invest, or at all affecting their responsibility for interest. If the monies had been invested in stock, instead of the ferries, this item alone would have produced, at this day, $ 53,000. Maund's [**88]  debt was nominal, and to the amount claimed, they might have invested as well as retained; for the judgment was enjoined, and Maund never made any motion to dissolve, nor the respondents to perpetuate; but twenty years after the injunction, the complainants themselves, (the trustees having abandoned the trust,) obtained its dissolution. Gray vs. Thompson, 1 Johns. C. R. 82. Dunscomb vs. Dunscomb, 1 Johns. C. R. 508, 535. Shiffelin vs. Stewart, 1 Johns. C. R. 620. Brown vs. Rickets, 4 Johns. C. R. 303. Minuse vs. Cox, 5 Johns. C. R. 441, 448. Murray vs. Munford, 6 Johns. C. R. 17, 452. 7 Johns. 265. 4 Des. 369, 556.

On the subject of compound interest they contended, 1. That compound interest is as moral and legal a claim as simple interest, wherever interest upon interest has been made, or might, and ought to have been made. The interest, upon the dividends or interest, must be somewhere, and if made, is the property of the owner of the principal:--if not made, and there is no gross negligence, the courts, so far favour a debtor, executor, guardian, or trustee, as not to charge them with it: but whenever the duty is plain, and it has been clearly violated, compound interest is [**89]  uniformly allowed by the decisions, not only of England and the United States, but of most other countries. 2. Where the trust directs investment, and none is ever made, but, on the contrary, the trustee never intended to make any, the courts uniformly allow compound interest, or, what amounts to the same, the interest is added on the yearly balances of principal and interest. 3. Merely as between debtor and creditor, interest upon interest is rarely allowed--but still compound interest is as recognised a right in certain cases, as simple interest is. They cited Waring vs. Cunliffe, 1 Ves. Jr. 99, (and note 1.) Schiffelin vs. Stewart, 1 Johns. Ch. Rep. 624 to 629. Newton vs. Bennet, 1 Bro. C. R. 359. Earl of Lincoln vs. Allen, 6 Bro. P. Ca. 319. Robinson vs. Cumming, 3 Atk. 410. Raphael vs. Boehm, 11 Ves. 92, 103, 109 Hammond's Dig. 332, s. 5. Ashhurnham vs. Thompson, 13 Ves. 403. Raphael vs. Boehm, 13 Ves. 407, 590. Peirce vs. Rowe, 1 New Hamp. Rep. 183. Dornford vs. Dornford, 12 Ves. 127. Kennon vs. Dickins, Cam. & Norw. 361. Nightingale vs. Lawson, 1 Bro. C. R. 440, 443. The case now before the court, is one demanding the allowance of compound interest much more strongly than in [**90]  the case of Catlett vs. Darnes, 6 Harris & Johns. Rep. 475, 482. In this case, it is proved that the trustees have speculated on $ 18,000, at least, of the trust estate. They not only never invested one cent as directed, but they invested $ 18,000 in a wild speculation of their own. They completely amalgamated the entire trust estate with their own. They not only let monies remain idle, but being directed to invest, they used the trust money, paid no debts until compelled, and involved the estate into costs, and fees of all kinds. Even the allowance of compound interest might not fully indemnify the complainants; and though trustees are not to be severely dealt with in cases of mere negligence, yet when their duty is plain, and they have never manifested the least intention to make the estate productive, and to surrender their talent with its proper increase, equity not only allows compound interest, but will scrutinise every account. Giving therefore, the fullest extent of the odium justly attached to compound interest, when it is used as a means of unseemly gain, the courts adopt it with alacrity, as the only means of attaining justice, wherever persons in fiduciary relations, have [**91]  forgotten the widow's and the orphan's portion, and heedlessly disregard plain directions, and simple duties.

They argued that the pendency of Maund's claim did not exempt the trustees from the charge of even compound interest; and examined the authorities cited on the other side, in the previous argument, as to the effect of outstanding claims, to relieve trustees from the charge of interest; and contended, that it was incumbent on the trustees, in order to exempt themselves from the charge, to show that they had deposited the money in chancery, or secured it under the sanction of chancery, so as always to be ready for the cestui que trusts, or to meet the judgment of Maund; and that it was the duty of the trustees, to save themselves from interest, to apply to the chancellor to have the funds, adequate to Maund's judgment, invested, while the suit, in regard to the judgment, was pending; and as the time of its termination was, of course, uncertain.

7. On the seventh point, they contended, 1. That the settled and unvarying doctrine of the common law is, that private trustees, who have not stipulated for a compensation, act gratuitously, and that no compensation or reward [**92]  can be decreed to them. That under the head of "just allowances," their necessary charges, and a small indemnity for days or time actually spent in executing trust duties, will be granted, when the time is clearly made out. 2. That no statute, act of assembly, or rule of court, having altered this established law, this court, if it allows commissions in this case, must judicially legislate. And though the validity of even a rule of court, in such case, might be questioned, yet as there is no such rule, a decision in this case, contrary to the common law, and in the absence of any statutory provision, or rule of court, would be a decree establishing a rule retrospectively. 3. That even if commissions be allowable, it is still not a fixed commission of 5 per cent. but is under the discresion of the court; and as no service has been rendered, and all expenses have been liberally allowed, this court will not go beyond a per diem, which the trustees have failed to prove: or if a commission, in lieu of a per diem, then a commission of one or two per cent. for the sake of approximation to a per diem. 4. That if compound interest be refused to complainants, that then the entire commissions [**93]  ought to be refused to the respondents, as the former claim rests on moral and legal reasons; the latter, on moral grounds only, and this too, only in the case of zealous and meritorious services, and a willing, full, and satisfactory settlement. And the court's discretion will be applied both to the fact of the allowance, and the rate of commission. The Roman law was decided, that nothing beyond reasonable and just expenses should be allowed to a trustee. Lucrum facere ex pupilli tutela tutor non debet. Dig. 26, 7, 33. Domat, book 2, s. 2, pl. 3; s. 3, pl. 35. The common law was always so as to bailiffs, guardians, &c. Co. Litt. 89. Litt. s. 123. So of a mortgagee in possession, 1 Ver. 316. 2 Atk. 120. 1 Smith's Rep. 252. 3 Atk. 518. 1 Pow. on Mort. 296. 2 Pow. on Mortg. 1072. As to trustees, the common law from the earliest times, down to the present day, has persisted in this principle. How vs. Godfrey, Finch, 361. Bonithon vs. Hockmore, 1 Vern. 316. Scatterwood vs. Harrison, Moseley's Rep. 128. Robinson vs. Pett, 3 P. Wms. 248. Char. Corp. vs. Sutton, 2 Atk. 406. Ayliff vs. Murray, 2 Atk. 52. Gould vs. Fleetwood, 3 P. Wms. 351. Amb. 78. 4 Ves. 72 10 Ves. 184. In re Ormsby, 1 Ball [**94]  & Beatty, 189. Ham. Dig. 641, s. 2, 3. Highm. on Lun. 70, 71. 1 Cru. Dig. 357, s. 42, 43, 44. 4 Desau. C. R. 368. Green vs. Winter, 1 Johns. C. R. 27, 37, 38, 43. Manning vs. Manning, 1 Johns. C. R. 527. Mason vs. Roosevelt, 5 Johns. C. R. 534, 540. Munford vs. Murray, 6 Johns. C. R. 1, 17.

8. On the eighth point. The complainants claim to charge Tench in all cases equally with his co-trustee, and if he exempts Samuel, he at the same time exempts himself. He is responsible for costs, as well as liable for all that may be decreed; so that he could not be examined even de bene esse. But as his interest in the event of the suit is now manifest, his deposition, if taken de bene esse, cannot be read; and if read is entitled to but little credit; as it is vague and unsatisfactory. They cited Dixon vs. Parker, 2 Ves. 219. Bridgman vs. Green, Ib. 629. Downey vs. Townsend, Ambl. 592. 2 Eq. Ca. Ab. 397, pl. 12. Skin. 673. Murray vs. Shadwell, 2 Ves. & Bea. 401, (and note a.) Whipple vs. Lansing, 3 Johns. Ch. Rep. 612. Lee vs. Atkinson, 2 Cox, 412. Floding vs. Winter, 19 Ves. 196.

Wirt, (Attorney General of U. S.) Jones, Taney, and Magruder, for the Appellees in the second appeal, on [**95]  the fifth, sixth, seventh and eighth points.

5. On the fifth point, as to the effect of the answers. Several of the credits claimed by the defendants are objected to, because there is no evidence (except their answer,) in support of them. It becomes of importance, therefore, to ascertain whether so much of the answers as the defendants rely on, be evidence for them. The bill of complaint calls upon the defendants expressly to "render a particular account of their transactions under said deeds of trusts." "Whether they have paid any of the debts due from the said Thomas Ringgold, and state the same." So much of the answers as the defendants would call to their aid, is strictly responsive to the bill. It is not necessary then to maintain the correctness of the ground taken by Chancellor Johnson. His opinion was, that if the complainants chose to make the defendants disclose on oath any part of the transaction, they were bound to let the defendants disclose the whole. That the matter in avoidance of, as well as the matter responsive to the bill, was evidence for the defendants, if the matter in avoidance was matter strictly connected with the matter responsive. In this he evidently [**96]  differed with Chancellor Kent, in Hart vs. Ten Eyck, 2 Johns. Ch. Rep. 62, who on the authority of a case in Gilbert's Law of Evidence, 45, decided, (not that matter strictly responsive to, but) that no matter in avoidance of the bill, could be evidence for the defendant. In the latter case it was simply decided, "that the defendant must make out by proof," (not what is responsive to the bill, but) "what was insisted on by way of avoidance." The matter stated in the defendants' answers is not in avoidance, but purely responsive to the bill. Nothing which the complainant's bill demands of the defendant to set forth in his answer, can be called matter in avoidance. The defendants have no interest, therefore, in disputing the correctness of Chancellor Kent's decision. If they had, it might be said for them, that it appears by the index to 7 Johns. Ch. Rep. 75, pl. 11, that his decree was reversed; and it is a thing unheard of that the supreme court of one state should borrow its law from the inferior court of another state, whose decision had been reversed by its own superior court. Many of the cases cited only go to show that the Chancellors were disposed to agree with Chancellor Johnson,  [**97]  as to what ought to be the law; that the decision in Gilbert is so often productive of mischief, that it is desirable often-times, for the purposes of justice, to escape from its operation. The doctrine of that case, however has been so long established, that it would be judicial legislation to overrule it. Yet it has not been longer settled, nor is it better known, or entitled to as much respect, as the rule for which we contend. "The general rule," (says Chief Justice Marshall in Clark's Ex'rs. vs. Van Riemsdyk, 9 Cranch, 160,) "that either two witnesses, or one witness with probable circumstances, will be required to outweigh an answer, asserting a fact responsively to the bill, is admitted." Yet the doctrine we have to combat, is that no witness is necessary to outweigh it; for that it is not evidence at all, unless perhaps the complainant is obliged to rely upon it in order to make out his case. Widely different was the opinion of Chief Justice Marshall. He understood the rule, and reason of the rule. "The reason, (he adds,) on which the rule stands is this. The plaintiff calls upon the defendant to answer an allegation he makes, and thereby admits the answer to be evidence."  [**98]  If therefore there be but one witness in opposition to the answer, we have the oath of one man, and opposed to the oath of another, and the complainants' solitary, though disinterested, and it may be unexceptionable witness, will not outweigh the oath of the interested defendant. Such is the general rule of equity, founded when understood, in the strictest propriety. It is to be found in all the writers uniformly recognized and acted upon by learned chancellors, and yet to be questioned by any court of equity. "There is no principle," (says Chancellor Hanson, in Hopkins vs. Stump, 2 Harr. & Johns. 304,) "better established than this, that if a defendant be compelled to answer, whatever he says on oath shall prevail, unless refuted by the testimony of two witnesses, or of one witness with equitable circumstances." Such is the strong and conclusive language upon this point, of men whose opinions no judicial tribunal is at liberty to treat with disrespect. Such has been repeatedly declared to be the rule of equity by the former and present court of appeals of this state. Without alluding to others, in the case of Jones vs. Sluby, 5 Harr. & Johns. 373, it was explicitly admitted by this [**99]  court that the answer, so far as it was responsive to the bill, was evidence, but declared to be only parol evidence. Surely the decisions of this court ought to be some evidence to itself of the law. But it is said that the defendants ought to have produced vouchers, and not to have relied on their own oaths. The answer to this is that it was not for the defendants to judge by which description of evidence they should establish their title to the credits which they claimed. The complainants were to make the choice for them, and they chose not to require the vouchers, which might deceive, but insist that they should be set forth in the defendants' answers, which were to be verified by their own oaths. Now suppose the defendants, in answering this bill, had omitted to state what debts had been paid by them, but in answer to that part of the bill had offered to produce vouchers in support of the credits to be claimed by them, what might the complainants have done? Precisely what they did do, with the first answer of Tench Ringgold--excepted to it for insufficiency, and claim the statement which was to be verified, not by vouchers, but by their own oaths. The complainants have a right [**100]  to insist, that they be furnished with proof of the several credits which the defendants claim. They do demand it, and it is furnished to them. They now complain of the absence of other proof--proof for which they did not call, and which of course they did not authorise the defendants to produce. Will it be pretended that the defendants had a right to burthen this case with voluminous records, judgments, decrees, bonds, with receipts in them, &c. &c. when the complainants, who were to be the exclusive judges of the necessity and propriety of calling for them, instead of asking for vouchers demanded only of the defendants to state in their answer "whether they have paid any of the debts due from the said Thomas Ringgold, and state the same." With respect to the disputed items, the charge against the defendants for the negroes taken from Prospect Hill, is conclusively refuted by several witnesses. The credit claimed by S. Ringgold for the money paid to M'Mechen, is established by the testimony of Tench Ringgold. Other proof could have been obtained in support of the credits now disputed, if it could have been surmised that they needed other vouchers. With respect to most, if not all [**101]  of them, though disputed in this court, they were admitted in the court of chancery. The account, on which the complainants insist as the correct account, allows to the defendants the principal part of these credits; and though their exceptions are not to be regarded as exceptions here, yet they must be considered as assertions or admissions by the complainants. They then stated the exception, which insists upon a particular account, and excepts to all other accounts, so far as they are inconsistent with the above account. They then turned to that account, and took from the credit side such of the credits there allowed as disputed, viz. M'Mechen's and Wilmer's claims. The above exception, if, as it is supposed, may be used as evidence against the complainants, is a distinct admission that the defendants are entitled to those credits, and therefore need not offer proof of them. In addition to this has been produced repeated settlements of the defendants' accounts with T. Ringgold, and admissions by him that they were correct, and that they are entitled to the credits which they now claim. Surely he who created the trusts, declared the purposes for which they were created, and was himself [**102]  a cestui que trust, had a right to examine the accounts of the trustees, and to approve of them. And his admissions ought to be some evidence of the correctness of the payments made by the trustees. If rejected, as claims on the trust fund, because others were interested with him in that fund, they are to be allowed in the settlement of that part of the estate--the chose in action, &c. which never constituted any part of the trust estate, but still remained his own, yet to be disposed of as he pleased, and answerable for any debt of whatever description he might admit. On this point they also referred to Blount vs. Burrows, 4 Bro. Ch. Rep. 75. S. C. 1 Ves. jr. 546. Kirkpatrick vs. Love, Ambl. 589. Snellgrove vs. Baily, 3 Atk. 214. Doyle vs. Blake, 2 Sch. & Lef. 243, Lady Ormond vs. Hutchinson, 13 Ves. 54. Green vs. Hart, 1 Johns. Rep. 580. Hart vs. Ten Eyck, 2 Johns. Ch. Rep. 93, (note.) 1 Fonbl. 179.

6. On the sixth point. Whether the decree should be enhanced from simple to compound interest? This question has been fully argued on the third point. It is settled law that these trustees are not chargeable with any breaches of trust, not charged in the bill. Smith vs. Smith, 4 [**103]  Johns. Ch. Rep. 281. It is not charged in either of the bills that there was any delay in paying debts, or in bringing Maund's affair to a final decision. James vs. M'Kernon, 6 Johns. Rep. 543. Where a trustee makes profit, and will not give an account, he is chargeable with compound interest. Evertson vs. Tappen, 5 Johns. Ch. Rep. 498, 517. Where the deed creating the trust directs an investment of the interest, which is not done, then compound interest is charged. Raphael vs. Bochm, 11 Ves. 92. S. C. 13 Ves. 407, 411. Darne & Gassaway vs. Catlett, 6 Harr. & Johns. 475. In Rocke vs. Hart, 11 Ves. 58, the money was used by the executor in the course of his trade; and yet only equitable rate of interest of 4 per cent. was allowed. In Young vs. Combe, 4 Ves. 101, there was an express violation of the trust. The executor had the money in hand, and it was his duty to invest. Only 4 per cent. was allowed. In Newton vs. Bennett, 1 Bro. Ch. Rep. 362, the executor kept the money without accounting, but employed it in his trade. Simple interest only was allowed. The note in that case shows that the only question was as to 4 or 5 per cent. not compound interest. Where gain is made the trustee [**104]  is to account for the gain, or pay 5 per cent. interest. Mosley vs. Ward, 11 Ves. 581. The case of Forbes vs. Ross, 2 Bro. Ch. Rep. 430, was a case of fraud. They also referred to and commented on, Perkins vs. Baynton, 1 Bro. Ch. Rep. 375. Treves vs. Townshend, Ibid 384. Piety vs. Stace, 4 Ves. 620. Ashburnham vs. Thompson, 13 Ves. 402. Crackel vs. Bethune, 1 Jacob & Walker, 566. A contract to account for compound interest is void. Where it is allowed, is a relaxation of the general rule. 1 Ball & Beatty, 430. Waring vs. Cunliffe, 1 Ves. jr. 99, (and note.) Ex parte Bevan, 9 Ves. 223. Connecticut vs. Jackson, 1 Johns. Ch. Rep. 13. Barrow vs. Rhenelander, Ib. 550. Van Benschooten vs. Lawson, 6 Johns. Ch. Rep. 313. Darne & Gassaway vs. Catlett, 6 Harr. & Johns. 475. Compound interest is allowed in certain specified cases of mortgages, &c. Perkyns vs. Baynton, 1 Bro. Ch. Rep. 574. Creuze vs. Lowth, 4 Bro. Ch. Rep. 157, 316. Raphael vs. Boehm, 13 Ves. 590. This last case was an innovation upon the general doctrine. The direction there was to invest the interest to accumulate for the benefit of the trust. Treves vs. Townshend, 1 Cox's Cas. 50, (note 2.) S. C. 1 Bro. Ch. Rep. 384. Tebbs [**105]  vs. Carpenter, 1 Madd. Rep. 290. Dornford vs. Dornford, 12 Ves. 127. In the most aggravated cases no compound interest was allowed. Hall vs. Hallett, 1 Cox, 134. Crackel vs. Bethune, 1 Jac. & Walk. 566.

The detainer of one trustee does not make his co-trustee answerable for interest, unless the money is placed in the hands of his co-trustee out of the line of the trust, or with knowledge that his co-trustee is not trust-worthy, and who applies the funds, not for the purposes of the trust. Is the case open in this point? Or indeed is compound interest before the court? The instructions by complainants to the auditor. The auditor's statement was to be made, subject to exceptions. No exception by complainants to the auditor's statement. They are now precluded from excepting. They affirmed the auditor's statement, and now they wish to except. Wilkes vs. Rogers, 6 Johns. Rep. 566, 591.

[BUCHANAN, Ch. J. Very soon after the constitution of the present court, it was decided that the auditor's report, to which there had been general exceptions, or where there had been special exceptions, or where there had been no exceptions taken to it in the court below, might be excepted to in [**106]  this court, and the whole accounts gone into.]

7. On the seventh point. Although a commission is not allowed, yet a substitution, by way of compensation, is allowed to trustees. Ellison vs. Airey, 1 Ves. 115. Brown vs. Litton, 1 P. Wms. 140. Chetham vs. Audley, 4 Ves. 72, (and note.)

8. On the eighth point. Although in general a co-plaintiff cannot be examined, yet a co-defendant may be examined in a matter in which he is not concerned. Brid. Ind. 659, pl. 2, 5; 660, pl. 12, 13, 14. Here Tench Ringgold cannot be interested; for he is defaulter, and the attempt is to charge Samuel, who is a creditor to the trust. So that whether Samuel is to be prevented from the credit in paying the debt to M'Mechen, is of no sort of consequence to Tench, as it will neither make him pay more, nor less, if the decree is against him. Murray vs. Shadwell, 2 Ves. & Beames, 404, 405.  

JUDGES:
The cross appeals were argued separately, before BUCHANAN, Ch J. and EARLE, ARCHER and DORSEY, J. BUCHANAN, Ch. J. dissented.  

OPINIONBY:
ARCHER 

OPINION:

 [*67]  ARCHER, J. delivered the opinion of the Court. This cause is one of great magnitude and interest; of magnitude, in relation to the amount involved in its determination,  [**107]  and of interest, not only on account of the principles connected with its decision, but of the peculiar relations in which the parties concerned stand to each other. On the one side, the complainants are the widow and children of one, whose infirmities and dissipated habits were, early in life, involving in ruin and entanglement a large patrimonial estate, and who gave sure indications that, in a short time, he would reduce to poverty his wife and family. On the other hand, the respondents are the uncles of the complainants, 

 [*68]  who, observing the unfortunate habits of their brother, generously stepped in between him and his tottering fortune, and took upon themselves the onerous duties of trustees of his estate. After a period of twenty-four years, they are presenting to this tribunal an account of their stewardship, which has been demanded by the widow and children of their brother.
After a laborious discussion of the very eminent counsel concerned for the parties, we have approached the examination of the multifarious and perplexed transactions which have grown out of a trust of such duration, with an anxious solicitude to arrive at truth, and by applying the law to ascertained [**108]  facts, to reach the justice of the case. Courts have very frequently painful duties to perform; and although they cannot be blind to the consequences which may flow to individuals from their decrees, yet insensibility to them is a stern mandate of judicial duty.
We do not deem it necessary for the purpose of this decree, to recapitulate the proceedings and numerous facts in the record; they will, perhaps, be found to be sufficiently stated in the auditor's report and in the chancellor's decree. The cross appeals will, for the purpose of this opinion, be considered as consolidated; and we shall proceed to present our views of the various questions which have been raised in the discussion by the counsel on either side.
The court conceive that the trustees are accountable for the value of Hopewell. In the view which we take of this subject, so far at least as concerns this question, it is immaterial to inquire, whether the transfer of this estate was made under the deed of 1798, or of 1807; for, in either view, they were not authorised to transfer that estate except by a sale. If it were considered as coming under the provisions of the deed of December 1807, its terms are too explicit [**109]  to need illustration. As it regards the deed of 1798, they were authorised to sell the whole or a part of the real estate on credit, or for cash, and the surplus, whether consisting of real estate, bonds or money, was to be applied as is therein directed. It has been contended, that the trustees under this deed had authority to make the exchange of Hopewell for the Ferry property on the Susquehanna, because the deed contemplates a surplus of land remaining 

 [*69]  on hand after the objects of the deed are gratified. The trustees might, in their discretion, only sell a part of the real estate, and the part in that event remaining in their hands, would have been a surplus over and above what was necessary to effectuate the objects of the trust. The argument would have been entitled to more weight, had the direction been to sell the whole estate. The sale of Hopewell, was not only a violation of the express stipulations of the trust, but was known and acknowledged to be so by the respondents. The deed for the terries, from Richard S. Thomas, was given to them in their individual characters, and not as trustees, and the reason for this procedure, as is deducible [**110]  from the complainants' exhibit B, is, that they had no right, by the terms of the trust, to take the ferries in exchange. In this transaction they both co-operated, and although they may have acted with the best intentions, and with the most honourable views towards their cestui que trusts, this court must hold them jointly responsible, unless by the various acts of sanction which have been given by Thomas Ringgold, they shall appear to have been justified. Apprehending, indeed, responsibility growing out of this transaction, the trustees, if they did not seek indemnity for this contract, accepted a bond from Thomas Ringgold reciting his original assent to the exchange, and binding himself to save them harmless; and on the same day on which the bond was executed, as if the more surely to guard them from anticipated responsibility, he made his last will and testament, in which, as far as he could, he attempted a ratification of this transaction. This instrument, although its expressions are general, has an undoubted allusion to this contract alone, for no other sales of real estate are alleged to have been made, which needed ratification. These instruments were executed [**111]  nearly four years after the execution of the deed of December 1807, by which he transferred all his land, negroes, stock and farming utensils to the trustees. His habits of inebriety are represented by the testimony before us to have been confirmed, and to have greatly debased and debilitated his mind. He was either placed, or believed himself to be placed, in a condition of the most abject dependence on his brothers, for even the most common necessaries of life. He had clear and unquestionable rights, 

 [*70]  as one of the cestui que trusts under the different deeds of trust, which secured to him in all probability, an ample independence. Yet, instead of manifesting any desire to enforce those rights, as his necessities might require, his letters rather represent him in the condition of a pennyless dependant on their charity and bounty. The relation existing between a trustee and cestui que trust, the policy of the law requires, should be guarded with vigilance by a court of equity--contracts between them should be scrutinised, that no injustice should be done the cestui que trusts. It is true, these various acts of attempted indemnity do not, in relation to the transactions [**112]  to which they have reference, or from their character as manifested on the face of them, bear any striking evidence of legal inefficiency. It might not have been inconsistent with those great principles of moral duty, or just liberality, which one brother might owe to another, to grant indemnity for acts, which, though injurious in their consequences, he might have believed proceeded from the purest motives. But a court of equity ought to be perfectly satisfied, that he was free to act as a rational intelligent man, that he was not governed by considerations growing out of a dependant condition; and in this case there is too much reason to believe, not only from his letters, but from his general character and conduct, as detailed by the testimony, that the considerations above alluded to, entered largely into the motives for executing these instruments.
The responsibility of the respondents growing out of this contract, having been determined, it is necessary to ascertain the price with which they should be charged. The cestui que trusts are entitled, upon every principle of equity, to the full value of the lands at the time of the sale. The trust has been violated, the title [**113]  to the lands disposed of contrary to the express injunction of the instrument under which they act, and there is no possible means by which this court can reinstate the complainants in their interest, but by charging the trustees with the utmost value of the property. This is the principle adopted in the case of a mixture or confusion of property, and the ground of it is, that although the trustee may be injured by its application, yet the cestui que trusts are certain of indemnity; and it would be but just, that if, in the impossibility growing 

 [*71]  out of the conduct of the trustee of ascertaining the actual value, injury should probably result, it should rather fall on him whose conduct had been delinquent, than on the innocent cestui que trusts. Yet, where the value of the property can be clearly ascertained, that must be the measure of indemnity. But for the circumstances which preceded and followed this sale, we should have been compelled to fix the value of these lands, from the opinions and recollections of witnesses, of the state and condition of the property, and what it would have sold for in 1807, and for this purpose, the depositions of Mr. Thomas,  [**114]   Mr. Worrell and Mr. Barroll, would have been sufficient; but the record furnishes us with the evidence that these lands were advertised for sale; that the sale was attended by many persons of property; that the lands were examined by several who were considered as desirous of purchasing, and who were able to have become the purchasers: yet, that when it was set up, a greater price could not be obtained than $ 16 per acre, and that the trustees bought it in for the estate, at that sum, and afterwards actually agreed to sell it to R. S. Thomas for that price, and even he refused to execute his contract. These facts furnish the best evidence, that the lands did not exceed the value of $ 16, and greatly outweigh the opinions of witnesses, as to its value, given many years after it was thus publicly offered. If the land had been more valuable, it would surely have been bid for at a greater sum, when it was thus offered under such favourable circumstances. Nothing can be deduced of the value of Hopewell, from the price which was fixed on it in the deed from the trustees to R. S. Thomas--this was done in consideration of the exchange--Thomas, whose experience made him [**115]  better acquainted with the ferries, was anxious to dispose of them, and probably anticipated some of the losses and inconveniences which subsequently attended them; although he was unwilling to give $ 16 an acre for Hopewell in cash, yet, if the ferries were taken in part, he was willing to give a much greater sum. This only shows his anxiety to rid himself of the ferries, and not that Hopewell was, even in his estimation, worth more. The court, therefore, think the chancellor erred in charging the value of Hopewell and Chester-Town property at $ 25,000.
The amount due from Tench Ringgold for the sale of the 

 [*72]  332 1/2 acres of the Washington lands, has been also one of the subjects of controversy. It has been contended by the respondents, that these lands were sold by Thomas Ringgold before the execution of the deed of trust of October 22d, 1798, and that having been so sold, they were not conveyed, or intended to be transferred by that instrument, and were not a part of the trust property; and this is emphatically stated in the answers of the respondents; and in the letters of General Ringgold to Mr. Brice, exhibited by the complainants,  [**116]  he regrets it as a misfortune, that the lands were sold by Thomas before the deed of trust was thought of; and it is said that one of the complainants, James G. Ringgold, acting for himself, and as agent and solicitor for the other complainants, has admitted the fact. But whatever may be the strength of this testimony, it is not warranted by the exhibits and evidence in the cause. By exhibit S. R. No. 1, Samuel Ringgold charges himself as trustee with the receipt of part of the purchase money of these lands; this account constitutes a part of the answer, as much so as any express averment in it; and in Tench Ringgold's exhibit, which also constitutes a part of his answer, it is said, that on the 21st of November, 1798, a settlement took place between Tench and Thomas, and assented to by Samuel, by which it appears that Thomas Ringgold is charged with the legacy due Tench, with interest up to the 6th of March, 1799, which shows, that until that period the legacy was unsatisfied, as it could not have been if a sale had taken place before the deed of trust. These inferences and facts are strongly supported too by the evidence furnished by the deed [**117]  of October, 1798, itself; that declares on its face the indebtedness of Thomas to Tench, and one of the first objects of the trust there created, is the satisfaction of the legacies due from Thomas under his father's will, (the legacy to Tench being one) by the sale of the lands. This instrument does, therefore, entirely negative the idea that a sale of these lands was made before the execution of that deed. But if Thomas had agreed to sell the lands to Tench, the legal estate in the Washington lands, with the amount due thereon, passed to the trustees, and it was unquestionably the duty of Samuel to collect the purchase money and convey the property. The 

 [*73]  deed of the 27th of May, 1799, from Thomas and Mary Ringgold to Samuel and Tench Ringgold, instead of impugning the idea of a sale by the trustees, is calculated to confirm it. If the Washington lands were not trust property, and did not pass by the deed of 1798, why was this deed executed to Tench and Samuel? Would he not have been more likely to have himself coerced the payment from Tench, and conveyed it to him, had he personally sold it to Tench, and [**118]  retained the title? Instead of this, he joins his wife in a conveyance to Samuel and Tench, which is in entire inconsistency with the idea of a previous sale by him. The object of this deed was undoubtedly to pass to the trustees the dower of Mrs. Ringgold, that Samuel might be enabled to give an unincumbered title to Tench, when the purchase money should have been paid by him to Samuel. In any light in which this transaction can be viewed, a joint responsibility grows out of it. If the estate passed by the deed of 1798, there was a breach of trust in Samuel in selling to his co-trustee, which would make him responsible; and if contracted for by Thomas with Tench, before the execution of that instrument, it still passed the legal estate to the trustees, and it was Samuel's duty to have collected it; and having not only failed to do so, but having made no effort for this purpose at any period of the existence of the trust, but suffered it to lie in his hands when he knew the trust was abused, in consequence of a failure on Tench's part to apply the amount of this purchase money to the payment of the debts of Thomas Ringgold, he has clearly [**119]  made himself responsible equally with his co-trustee.
The joint responsibility of the respondents for the sale of the personal property in November, 1807, on the eastern shore, is a question which has also been submitted to the consideration of the court. The bill charges the trusts under the deeds of 1798 and 1807, and the answers of the defendants admit the trusts confided to them; and in their various exhibits, which are made parts of their answers, they return accounts of their sales of the personal property as made under these deeds. It seems to have been considered by the trustees, as far as the evidence in the cause will enable this court to judge, that the trustees conceived they had power, under the deed of 1807, to sell the personal 

 [*74]  property which was disposed of by them, from Hunting field and Hopewell. But it is very clear, that a deed made on the 18th of December, 1807, could transfer no right to property which they had sold on the 27th of the November preceding. Thomas Ringgold, at that period, had no interest to convey. Samuel and Tench had sold it all previously to various purchasers, in his presence, or with his express approbation,  [**120]  at a time, too, when he had, for aught that appears in the cause, a complete right to it; for by the deed of 1798, no personal property was conveyed, and we cannot notice the deed of January 1807, as it is not evidence in any manner in this cause. It is very probable that these sales were all made in anticipation of the deed of December, 1807, which was to follow, and did follow a few days after the sales. That Samuel and Tench were trustees of this property, must be inferred from all the evidence. They exercised dominion over it; they sold it with the assent of Thomas; they took bonds from the purchasers in their own names; they collected a part of the purchase money, and they have proffered themselves ready to account for these sales, and have made a return thereof as having been made by them as trustees. These sales not being then within either deed of trust, must have been made under some conventional arrangement, either verbal or written, which is not before the court, and which is only to be inferred from the transactions of the parties. That such a trust may be asserted and enforced in a court of equity, cannot be questioned. But the difficulty on the part of the [**121]  complainants, arises from the circumstance, that there is no allegation in the bill which covers or affects any other trusts than those of October, 1798, and of December, 1807. A court cannot be aided in the construction of any agreement by the acts which the parties may have done under it, nor is a party bound by any construction which he may have put upon the instrument. The answer, therefore, which presents a list of the negroes and specific articles of personal property sold on the eastern shore, also discloses the fact that the sales were made anterior to its execution, and the evidence confirms the answer in this respect. Had these sales been actually made in anticipation of the deed of 1807, and resting on the agreement of the parties that they should be confirmed by that

 [*75]  instrument, and that their responsibility for the proceeds of these sales should be governed by its stipulations, which we have no doubt from the evidence was the fact; had some verbal or other trust existed under which they were made, or had Samuel exercised dominion over the property after the execution of the deed of January, 1807, and proceeded to sell the property as trustee in virtue [**122]  of its stipulations, as if it had been a valid and operative transfer, and had under these circumstances joined Tench with him as agent, or associated him as a co-trustee with the assent of the parties, in anticipation of a deed of trust subsequently to be executed, it was surely important that each or all of these facts, as the truth might warrant, should have formed substantive allegations in the bill; or if either fraud or mistake had given the deed of December, 1807, the shape which it now assumes, contrary to the understanding and agreement of the parties, that should also have been averred: A court of equity must always decree upon the allegations of the complainants. It is never justified in going beyond them. Such a course would violate the fundamental principles of pleading, and would work a surprize on the respondents. Had the respondents admitted a sale under these deeds, without disclosing the fact of the anterior sales, it might be well questioned whether what had been thus in pleading explicitly admitted, could be contradicted by the adduction of evidence on their part, showing that the sales were anterior to the deed. But having averred the sales previous to the [**123]  deed, although they state that the sales have been made by them as trustees, they are not estopped and precluded from demanding whether a legal responsibility grows out of the deeds of trust for sales previously made by any just construction thereof. We are therefore of opinion, that in this cause, whatever under other circumstances might be the right of the complainants' demands against the respondents as trustees for sales of the personal property on the castern shore, this court, in the state of these proceedings, cannot decree against them for the amount of those sales. In this respect, the rights of the parties are reserved for the future consideration of a court of equity, should the complainants deem that their interest demands an investigation.

 [*76]  But although the sales of the personal property cannot be covered by any allegations in the bill, this court, in this proceeding, will do equity between the parties as far as is consistent with the established principles of chancery proceedings. It appears from the evidence in the cause as furnished by the answers of the defendants, (see their various accounts filed as exhibits to their answers,) that Samuel Ringgold [**124]  has received the sum of $ 1,117 83, part of these sales, and that Tench Ringgold has received the residue from the different purchasers. Samuel Ringgold has applied the sum thus received to debts of the estate, and Tench Ringgold has paid debts and made disbursements to a considerable amount after the sales of the personal property. We shall therefore consider, so far as Tench has, after the sales of the personal property, paid debts and made disbursements for the estate of Thomas, that they were made from such receipts. For all the residue of Tench's receipts, which will be unexhausted by such an application, and for the amount of his own purchases at the sales of 1807, all of which remains uncollected, accountability must be sought by the complainants in a new proceeding. We conceive from the evidence in the cause, that although these sales were not within the terms of the trust of 1807, charged in the bill, yet they were in their hands as trustees for the payment of debts, as well as the property actually passing by that conveyance, and being so, and their accounts showing generally that debts were paid without designating out of what trust fund particularly [**125]  they were paid, that for the purpose of effectuating justice between the parties, we have a right to consider that the debts and disbursements after the sales of 1807, were paid by each trustee to the amount of actual receipts by each from these sales, out of the money received by them from such sources.
We consider the respondents as properly chargeable for the amount received from Thomas Ringgold's securities. These securities amounting to the sum of $ 8,191 47 were received in the years 1799, 1800, 1801, 1803, and 1805, as appears by the accounts exhibited and receipts offered in evidence. The complainants allege, that at the time of the execution of the deed of trust of 1798, authority was given by Thomas Ringgold to the respondents, to collect all debts due to him, (to be 

 [*77]  applied to the payment of his debts, and that in virtue of such authority, large sums of money were received by them) and they pray an account thereof. This allegation is not directly answered, otherwise than by their exhibited accounts, and by testimony from which it appears, that outstanding debts at that time, due to a large amount, were by them collected as trustees. These facts justify [**126]  us in saying that such authority was given, and that they acted in regard to them as joint trustees.
These respondents are also chargeable with the rents received for the lands of Thomas Ringgold. The legal estate passed in these estates to the trustees by the deed of 1798. They were rented out and the rents received, and should have been applied to the purposes of the trust.
The subject of interest forms a very important item in the controversies between the parties--the respondents insisting that interest ought not to be charged against them, while the complainants contend, that they should be allowed compound interest, or if not, that the chancellor has erred in allowing a rest of six months from the receipt of monies by the trustees free of interest.
As it regards the balance due from Tench for the Washington lands, there can be no pretence for exemption from interest; he was to pay for them at a stipulated period and has failed to do so; and it having been determined that there is a joint responsibility for the principal, there is, of course, a joint responsibility for the interest.
As it regards the receipts of Tench between the execution of the two deeds [**127]  of trust, which were not applied by him to the payment of debts, it may be remarked that it was his duty to apply them to such outstanding claims as were then due from the cestui que trust, or if he had detained them, to have met the outstanding judgment of J. J. Maund, to have placed those monies in a situation where they could never have met with those accidents to which every individual's fortune may be liable. He should at least have shown us, that the funds were kept separated from the mass of his estate. Could this have been done, this court would have been disposed to shew the utmost indulgence. The pressing character of the outstanding debts, could not but be known during this period of Samuel, 

 [*78]  for he was, during the most of this time, advancing from his private estate to meet them; yet he makes no effort to obtain the funds in Tench's hands to be applied to these objects. He must have known that Tench had funds; for he was permitted to collect debts on the eastern shore, and if he did not know, he was surely bound to know and to watch over the conduct of his co-trustee. Upon such sums, they must be conjointly charged with interest.
For the [**128]  amount due from them on account of the Hopewell estate, they are certainly chargeable with interest. That they invested it in property unproductive, can furnish no ground for exemption, because they acknowledgedly transcended their power and violated their legal duties and obligations. We must consider them as having the value of this estate in hand at the time of the sale; and the reason assigned for the previous liability, will apply to them in this particular, if the sales were even made under the deed of 1798, where the obligations of the trustees to pay interest is not so entirely clear and apparent as under the deed of 1807. But the sale may and ought to be considered as made under the latter deed. It is true, the contract of sale was made before, but they derived their power and authority to perfect it under the deed of 1807, for that conferred the power to pass it free from the incumbrance of Mary Ringgold's dower; and the title of R. S. Thomas, was in fact, made and perfected after and under that instrument, the conveyance to R. S. Thomas, having been made in 1808. Now, what are the stipulations of the deed of December 1807, so far as they relate to the present [**129]  question? "That the whole estate thereby conveyed, should be immediately sold, and after paying all the just debts of Thomas Ringgold, the proceeds should, as received, be invested in government, bank, or turnpike stock, and the interest or dividends to be paid in the proportions therein mentioned; part to Mrs. Ringgold during the joint lives of herself and Thomas; part to Thomas during his life, and part to be applied to the support and education of the children of Thomas and Mary, yearly and half-yearly, as the same may be received; and that, until the proceeds of the sale shall be invested in stock, the interest arising therefrom, shall be paid and applied, when and as it is received in the proportions therein designated, 

 [*79]  to the cestui que trusts." Having the proceeds of this estate in hand, it was their imperative duty to have invested unless a portion, or the whole of them, had been demanded by acknowledged debts of Thomas Ringgold. The deed was intended as a family provision, and the debts then outstanding, except Maund's judgment, were inconsiderable. By transferring the legal estate to the trustees in all this property [**130]  they placed their dependence upon its productiveness in their hands for a support. They parted with the income which it furnished in consideration, and evidently under the expectation, that it would be immediately invested. It had been represented nearly a year prior by one of the trustees, that the estate was nearly disencumbered of debts, and hopes were entertained that Maund's claim, which was then depending in court, would be perpetually enjoined. It had been litigated at that period for several years and no reasonable expectation could then be entertained that it would be very speedily brought to a close. Under these circumstances, would the trustees have been justified in laying by the money and patiently waiting for the event of a protracted chancery suit; the debt daily growing larger by accumulating interest, the funds remaining idle and stationary, and the family suffering for want of the means of subsistence, depending on the charity of their relatives? It never could have been the intention of the parties, that the investment in stocks should await the determination of J. J. Maund's judgment; or that the family should for a moment be left without support, for the [**131]  interest on the sales are directed to be paid them until the funds are invested; thus, looking to a constantly accruing interest, and negativing every idea of any intended permission, that they should lie idle for such a purpose. Had the money then remained in their hands, they would have been grossly negligent in not investing it. In such a case the rule is settled, that trustees are chargeable with interest. Treves vs. Townshend, 1 Brown Ch. 384. Rock vs. Hart, 11 Ves. 58, and the rule, Chancellor Kent declares to be founded in justice and good policy, as tending both to prevent abuse and indemnify against negligence. Dunscomb vs. Dunscomb, 1 Johns. Ch. 504, 508.
Where the trustee is directed to invest funds and to reinvest 

 [*80]  the dividends, or interest, or in other words, where the trust directs an accumulation, and the trustee has used the funds, compound interest will be allowed, as was done in the case of Raphael vs. Boehm, 11 Ves. 92, 108, 109; and S. C. 13 Ves. 407, 590; or where he has used the trust money, or employed it in his trade or business, he shall also be charged in the same [**132]  manner as was decreed in Schieffelin vs. Stewart, and others, 1 Johns. Ch. 620. The grounds of this allowance, as is apparent from these cases, is founded on the gain or presumed gain of the trustees, and that the cestui que trust, may be indemnified by the efforts of the court in this way, to reach their profits or presumed profits. But, in this case, although the cestui que trusts could not, perhaps, be indemnified by a less allowance than compound interest, yet the circumstances forbid the presumption of a gain on the part of the trustees: although the investment was in violation of the trust, it was done doubtlessly with the best intentions; with no views whatever, of reaping from the transaction, any benefit to themselves, but declaring that the profits, whatever they might be, if any, should be for the benefit of the trust estate. Believing such to have been their motives and views, public policy forbids that courts of justice should pursue a course which would have a tendency to deter persons from accepting offices frequently so necessary for mankind.
The trustees have been allowed on the authority of the case of Dunscomb vs. Dunscomb, 1 Johns. Ch. 510, [**133]  a rest of six months without interest on their receipts. This is allowed as a reasonable time within which to pay or invest the funds. There would be great reason in the rule, had they actually invested or made efforts to invest; but in this case no dispositions were ever manifested to make such an application of the money as the trust contemplated. Debts due from the estate, were in many instances accumulating interest with the addition of costs, while funds were suffered to lie idle in the hands of one of the trustees, or were diverted to objects of expenditure foreign to the trust. To allow this rest, would in our opinion be doing injustice to the cestui que trusts.
Part of the account of Simon Wilmer, together with many other charges against the estate, were allowed by the auditor in 

 [*81]  his accounts, and sanctioned by the Chancellor's decree, for which no vouchers were produced, and these allowances have been made the respondents from the statement in their answers alone, by which they represent these disbursements to have been made. The general rule that an answer responsive to a bill, is evidence for a respondent, is a well established and settled principle.  [**134]  But, the answer of a defendant, where it asserts a right affirmatively in opposition to the plaintiff's demand, is not evidence. Beckwith vs. Butler, 1 Wash. 224. Paynes vs. Coles, 1 Munf. 373. An answer will not support a matter set up in avoidance or discharge where the matter of avoidance is a distinct fact. In such case, the defence must be proved. Mr. Evans in his appendix to Pothier on Obligations, 157, lays down the following principle: That where the answer is replied to, the whole is put in issue, and the defendant must support by proof, all the facts upon which he means to insist, while the complainant may rely upon every fact admitted, which he conceives to be material, without being bound to the admission of others; and this rule he deduces from a case cited in Gilbert, 51, which, as it is a leading case, it will be necessary to notice. There, the defendant, by his answer, which was put in issue by the complainant's replication, admitted as executor, that the testator had left £  1100, and said, that afterwards, the testator gave a bond for £  1000, and the testator gave him the other £  100; as there was no evidence [**135]  but the defendant's admission for the receipt, it was contended that he ought to find credit when he swears to his own discharge; but it was resolved by the court, that when an answer was put in issue, what was confessed and admitted need not be proved, but that it behoved the defendant to make out, by proof, what was insisted upon by way of avoidance. Chancellor Kent declares that this rule is well settled in chancery proceedings, and recognizes and adopts it in the case of Hart vs. Ten Eyck, 2 Johns. Ch. 62, where all the learning on this subject is ably collected and reviewed, and where it was determined that on a bill to account, the answer is no evidence of disbursements. The cases above cited from Washington and Munford's Reports, were also bills in chancery against executors to account, and where discharges alleged in the answers were held 

 [*82]  to be of no avail unless supported by proof. The doctrine may then be considered as settled, that on a general bill to account, the answer is no evidence of disbursements, notwithstanding it is said that the Court of Errors of the State of New-York, overruled on appeal the judgment of Chancellor [**136]  Kent on this question. 7 Johns. Ch. Rep. General Index, tit. Evidence, 75, pl. 11. That tribunal, from its peculiar structure, does not appear to be calculated for legal investigation, and its judgments cannot outweigh the opinion of Chancellor Kent, fortified as it is, by numerous cases of established authority. But, it is said, there being a call here for the amount of disbursements, and debts paid, that this case is varied from those which have been cited. It is true, there is, from aught that appears, a variance in form, but there is none in substance. For, a prayer that the defendant shall account, is in effect a call on the defendant, to state in his answer, not only his receipts, but his disbursements, so that the complainants may have an opportunity of putting them in issue; and without which, indeed, the defendant himself could give no evidence of them. Nothing more is demanded in the interrogatories in this bill, than, under a general call to account, the defendant would have been obliged to answer. It is nothing more in either case, than a demand on the defendant to show his receipts and the legal evidences of his expenditures, in conformity with the trust.  [**137]  Nor is there any hardship in the rule. Men of ordinary care preserve the evidences of their payments, and to say that the respondents should have done it, is demanding from them nothing extraordinary or out of the usual course of human transactions.
The establishment of a contrary doctrine would lead to dangerous consequences, and would be calculated to render trusts valueless, by giving to trustees, executors and guardians, the power on their own oaths, to exempt themselves from all responsibility. The rule then may be stated, (and it is the good sense of all the cases cited in the argument,) that in all cases where a complainant seeks a discovery and relief, and to make out his case, applies himself to the conscience of the defendant, if, in his answer, the liability is once admitted, there can be no escape from it but by proof. It is true, every thing which he says, with regard to the creation of that liability, must be taken 

 [*83]  together; detached sentences cannot be used against him, but every thing which he says, relative to his original liability, is properly in evidence. This doctrine will be found to be supported in Lady Ormond vs. Hutchinson, 13 Ves. 53, 54, [**138]  and by the cases above referred to.
The complainants, by their supplemental bill, seek to make the respondents accountable for nine negroes, taken by Samuel Ringgold, at the stipulated price of $ 2000. The answer of Samuel admits that they were so taken, but denies accountability, as they were taken at a valuation, in part payment of large sums of money, paid and advanced by the respondent, to Thomas Ringgold, and that a balance is still due him, of upwards of $ 3500. Samuel Ringgold, in Exhibit No. 1, filed with his answer to the original bill, has charged Thomas Ringgold with the payment to D. and W. M'Mechen of the sum $ 3574.
The court are of opinion, that the respondents cannot be charged with the valuation of these negroes. It is in evidence, that Thomas Ringgold admitted, that they were taken in part satisfaction of a debt, due from him to Samuel, in the year 1806; at a time, when from aught that appears in evidence, he was exercising dominion over his personal estate, and when no deed of trust, which the court in this cause can notice, covered it. As it regards the sum of $ 3574, which Samuel Ringgold claims credit for, the court [**139]  deem it unnecessary, in pronouncing their judgment, to recapitulate the testimony of the various witnesses, who have been examined on the subject. Nor do they deem it necessary to determine the question, as to the competency of Tench Ringgold's testimony, for it is considered, that there is enough in the record without it, to justify the allowance.
It is contended, that this court is not competent to allow commissions, as a compensation to the trustees for their trouble. In England, a liberal indemnity is allowed to trustees for their expenses, but nothing as a compensation, unless founded in positive agreement between the parties. This rule appears to be applicable, not only to trustees of every description, but to executors. They are considered as confidential offices, gratuitously undertaken from motives of friendship or humanity, and 

 [*84]  without views of personal benefit or profit. Yet, the English courts grant per diem allowances, not in the nature of a compensation, but under the name of an indemnity. The difference then, in truth, is only in the mode of allowance, not in the principle. It is in fact, a mere difference in name. Commissions in a [**140]  case like this, might very fairly be considered as only extending a just and reasonable indemnity for time bestowed in the management of the concerns of others. But if, indeed, there was a difference in principle, this court would feel themselves justified in granting reasonable commissions. Our statutes allow commissions to executors, administrators, guardians and trustees, under judicial sales, and by analogy to these statutes, or by an equitable construction of them, the allowance may, and ought to be made in this case. But, although the general claim to commissions is admissible, we conceive that none should be allowed for the sale of Prospect Hill. The trustees have paid N. Brice, their agent, the only commissions to which they were entitled on this sale.
By the will of Mary Ringgold, bearing date in October 1803, certain legacies were bequeathed to Samuel and Tench Ringgold, in trust for Thomas Ringgold; with these legacies the respondents have charged themselves in their account accompanying their answers, but have, at the same time, referred to the source from which they emanate. There is no allegation in the bill of complainant or supplemental bill,  [**141]  which reaches this trust, and they cannot in this proceeding, be charged with them, either jointly or severally, but the equity of the complainants, in respect thereof, is reserved.
The court have appointed an auditor for the purpose of stating an account between the parties, upon the principles contained in this opinion, and will direct, that his costs shall be taxed in this proceeding. From the account thus audited, it appears that the sum of $ 39,318 54, with interest on the sum of $ 28,576 87, part thereof, from the 1st of July 1822, is due from the respondents to the complainants, which will be decreed to be paid into the court of chancery, to be distributed or invested under the authority thereof, according to the rights of the respective complainants.
We concur with the chancellor in awarding costs to the complainants, 

 [*85]  and are of opinion, as the decree of that court will be entirely reformed, that each party pay their own costs in this court.  

DISSENTBY:
BUCHANAN 

DISSENT:

BUCHANAN, Ch. J. dissented.
Decreed, That the decree of the court of chancery given and rendered in these causes, be reversed, except as to the amount and sum of money, hereby decreed to be payable to [**142]  the appellees in the first and the appellants in the second of these causes. And this court proceeding to pronounce such decree in the premises, as the court of chancery ought to have pronounced, Decreed also, that there is due from the appellants in the first and appellees in the second of these causes, and that they do pay to the appellees in the first and appellants in the second of these causes, in the manner hereinafter mentioned, the sum of $ 39,318 54, with interest on the sum of $ 28,576 87, part thereof, from the 1st day of July 1822, the said sum, with interest, having been ascertained by and agreeably to the accounts hereto annexed.
Decreed also, that the parties in the said causes, pay their respective costs incurred by them in this court on their appeals, but that the appellants in the first and appellees in the second of these causes, pay to the appellees in the first and the appellants in the second thereof, the costs incurred by the said appellees in the first and appellants in the second of said causes, in the court of chancery.
Decreed also, that the chancellor make and pass all necessary orders for carrying this decree into full and complete effect,  [**143]  by ordering and directing, that the said sum of money, with interest as aforesaid, and the costs as aforesaid, incurred in the court of chancery, be brought into the said court of chancery, by the appellants in the first and appellees in the second of these causes, to be distributed and paid, under the directions of the chancellor, to the said appellees in the first and appellants in the second of said causes, according to their respective rights and interests; and also, that the chancellor order and direct, that the said appellees in the first and appellants in the second of said causes, pay to the auditor of the court of chancery the sum of $ 23 33, allowed by this court to the auditor, for his fees in 

 [*86]  auditing and stating the accounts directed by this court to be made between the parties.
Decreed also, that all the equity and equitable rights and claim of the said appellees in the first and appellants in the second of said causes, be, and the same is hereby reserved and maintained to them, against the said Samuel Ringgold and Tench Ringgold, or either of them, as to all or any personal estate, of the late Thomas Ringgold, or the proceeds of sales or dispositions [**144]  thereof, of any kind, and interest on such proceeds, except as to so much of such personal estate and proceeds, as has by the accounts hereto annexed, and by this decree, been applied to or in reference to the payments and disbursements, by the said Samuel and Tench, or either of them; and also, that the like equity be reserved and maintained to the said appellees in the first and appellants in the second of said causes, against the said Samuel Ringgold and Tench Ringgold, or each or either of them, as to any legacies bequeathed, to or for the benefit of the said Thomas Ringgold, by the last will and testament of his mother, Mary Ringgold.
DECREE REVERSED, &c.  

32 of 33 DOCUMENTS 

PRICE & NISBET vs. BIGHAM'S EX'rs.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

7 H. & J. 296; 1826 Md. LEXIS 39 

June, 1826, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from a decree of the Court of Chancery. The bill filed by the appellees' testator against the appellants, on the 4th of June 1816, stated that he was employed by Frederick Price, and Penelope D. Price his wife, (one of the defendants,) sometime in the year 1811, to perform certain carpenter's work in and upon a dwelling-house which the said Frederick was then erecting upon a tract of land, which he then held in right of his wife Penelope, and to which she was entitled in fee simple. That he did undertake and perform work and labour as a carpenter and joiner on said house, during which time Penelope directed him in the style and fashion of putting up and erecting said work. That the amount claimed by him for the said work, then unfinished, and labour, was $ 488 41, as contained in the account thereof exhibited. That Frederick Price obtained the benefit of the insolvent laws of this state, and was discharged from all claims of his creditors; and that the complainant then refused to proceed with his said work until he should be paid or secured for the work he had done. That the said Penelope requested him to proceed with and finish the work so commenced by him, and agreed, that [**2]  if he would proceed with and finish the same, he should be paid for the work he had heretofore done, and also for the completion of the carpenter's work on the said house and buildings; and that to secure him for the said work which he had performed, and was to perform, the said Penelope offered to subject her said tract of land to the payment of the amount of the said work so done as aforesaid, and for work to be performed, and all materials furnished. That the said tract of land was conveyed by William M'Mechen to Alexander Nisbet, (the other defendant,) in trust for the sole use and benefit of the said Penelope, by deed dated the 12th of January 1810. That accordingly Penelope did, by her certain agreement, dated the 14th of October 1813, contract with the complainant to pay him for the work to be performed on the said house, and also to pay him for the work then unfinished, and for all materials which he might furnish in and about the premises; which said agreement was signed, sealed and delivered by her, and also signed by Nisbet the said trustee; and in and by which said agreement the said Nisbet is authorized to hold the said land charged with the payments for the said work,  [**3]  and to sell such part thereof as would satisfy the payment of all materials which the complainant might furnish at the instance of Penelope, and the payment of all unfinished work then about the said buildings, and for all work which he might thereafter do about the same, as by the agreement exhibited would appear. That the complainant, soon after commenced his work on the said buildings, and completed the same, and had the work measured and valued, and which amounts to the sum of $ 1949 53, as appears by an account thereof exhibited. That he found and furnished materials for the buildings to a considerable amount, &c. viz. $ 450, and that he had been put to considerable expense and trouble in and about the premises. That he had frequently applied to said Penelope and Nisbet for payment of the said sums of money, which they have uniformly neglected to pay or to give him any satisfaction therefor; and he had frequently applied to the said Nisbet to make sale of the lands so conveyed to him in trust, and in pursuance of the said agreement to pay to him the complainant the respective sums of money before mentioned, and all the interest thereon due; but that Nisbet refused to sell the [**4]  said lands and pay the complainant, and had neglected and omitted to execute the said trust reposed in him. That the said Frederick Price is since deceased. Prayer, that Penelope may be decreed to pay to the complainant the said respective sums of money, and the interest thereon, so due to him, together with the costs of this suit, by a certain day to be appointed; and in default thereof that the land, mentioned in the said agreement and deed therein referred to, may be sold, and the proceeds thereof applied to the discharge of the complainant's said claim, interest and costs; and for other and further relief, &c.

Exhibit by the complainant, (besides his accounts, &c.)--A deed of trust executed by William M'Mechen, Frederick Price, and Penelope D. his wife, to Alexander Nisbet, dated the 11th of January 1811, reciting, that on the 12th of January 1810 the said Frederick Price, and Penelope D. his wife, had conveyed to the said M'Mechen, (which said deed the complainant also exhibited,) all the lands and estate which the said Penelope was or could be entitled to in virtue of the last will of Thomas Cockey Deye, and which by a division of a part of the real estate of the said Deye,  [**5]  made by order of the court of chancery, amongst certain of his devisees, was allotted to the said Penelope as lot number one--To hold the same unto the said M'Mechen, his heirs and assigns forever--In trust for the uses, intents and purposes therein expressed and set forth. That the said Frederick Price, and Penelope D. his wife, desirous to alter and change the said trust estate in relation to the said lot number one, &c. the above mentioned deed was executed, conveying the said lot number one to the said Nisbet, his heirs and assigns--"In trust, that the said Alexander Nisbet, and his heirs, shall henceforth be and stand seized of the said lot of land number one and premises, with the appurtenances, to and for the sole and separate use and benefit of the said Penelope Deye Price, so that she be permitted to use, occupy, and enjoy the same, and the rents and profits thereof to have receive, take, and apply to her own sole and separate use and benefit, her coverture notwithstanding, for and during the term of her natural life, or until the same land and premises shall or may be disposed of by her in the manner hereinafter limited and expressed. And also upon this further trust, that [**6]  the said Penelope Deye Price shall be suffered and permitted to sell and convey, and absolutely dispose of, by deed or deeds duly executed by her, the same lot of land and premises, or any parts, part or parcel thereof, to such person or persons, and for such sum or sums of money, or other consideration, as she at any time or times shall or may think proper, her coverture notwithstanding; so that the said hereby granted and released land and premises shall not, nor shall any part or parcel thereof, be subject at any time to the disposition or management of the said Frederick Price, or any future husband of the said Penelope." Provision is then made as to such portion of the said land and premises as may remain undisposed of, &c.

The complainant also exhibited the following agreement, referred to in his bill, and which was afterwards proved under the commission which issued to take testimony: "Baltimore county, to wit. Whereas Frederick Price, husband of Penelope Price, is now building a house on a tract of land conveyed by William M'Mechen, Frederick Price, and Penelope, his wife, to Alexander Nisbet, in trust for the purposes therein mentioned, by indenture recorded in," &c.  [**7]  "And whereas Robert Bigham has undertook to complete the unfinished work now about said house. And whereas the said tract of land has been conveyed to the said Alexander Nisbet, in trust for her separate use, and she is desirous of securing to the said Robert Bigham the payment of the sum which the completing of the said unfinished work may amount to. Now therefore, these are to authorize the said Alexander Nisbet to hold the said tract of land charged with the payment of the amount of the said Robert Bigham's bill of work as before mentioned. And in case the said Penelope Price shall not pay, or cause to be paid, to the said Robert Bigham, the amount of his bill, which shall be ascertained by persons indifferently chosen by Mrs. Price and Robert Bigham, and if they differ in opinion, they are to choose a third; and the determination of any two to be binding on the parties, and the amount paid to the said Bigham by the first day of December 1814, which she hereby promises to do. Then the said Alexander Nisbet is hereby authorized to hold the said tract of land, charged with the payment of said sum; and the said Nisbet is hereby authorized to make sale of so much of said land as will [**8]  satisfy the payment of all materials which said Bigham may furnish at the instance of Mrs. Price, and the payment of all unfinished work now about said building, and for all work which he may hereafter do about said building, and ascertained as aforesaid. In witness whereof, the said Penelope Price hath hereunto set her hand, and affixed her seal, the fourteenth day of October 1813.

Penelope D. Price. (L. S.)

Signed, sealed and delivered, in the presence of Francis T. D. Owings.

I have received notice of the within engagement made by Penelope Price.     Alex. Nisbet.

The house to be completed and finished by the 15th of March 1814. Witness my hand and seal the said 14th October 1813.

Robt. Bigham, (L. S.)

Witness, Francis T. D. Owings."

The answer of Nisbet is not considered to be material. That of Mr. Price admits that the complainant was employed by her husband in his lifetime to perform certain carpenter's work upon a dwelling-house, which her husband was then building, as stated in the bill of complaint; but she does expressly deny that she either did or could make any contract with the complainant, as stated in his said bill, she being then [**9]  a married woman. She admits that the complainant did perform certain parts of the carpenter's work on said house during the life of her husband; but that a considerable part thereof then remained to be done and performed. And as her husband died insolvent, the complainant requested her to become responsible for the work which had been done on said house, and to be employed to complete the same; but she positively refused to engage or agree to pay for the work which the complainant had done, and had begun to contract with another carpenter to finish the same, who proposed to do the same in a plain manner, as she desired, for the sum of $ 700. That when the complainant understood she was about to employ another carpenter, he applied to her, and requested, that as he had lost the work already done on said house, he ought to be preferred in being employed to complete the carpenter's and joiner's work thereof, as he would do it as reasonable as any other person. That in consideration of this representation, she did agree that the complainant should finish the said work, and that she would pay him therefor, and also for any materials he might furnish for the same; and for this purpose, and [**10]  with this view only, she entered into a contract with the complainant. But she expressly denies that she ever intended or agreed to pay the complainant for any work, either finished or unfinished, which had been done in the lifetime of her husband; and she so expressly understood the aforesaid contract at the time of executing it. And if there are any words therein which may imply any other engagement, they were artfully and covertly brought in to delude and deceive her, and were not observed or so understood by her at the time. That the complainant in finishing the said work did maliciously and fraudulently, against her repeated requests and his own agreement, execute work in the most expensive manner, and instead of completing the same by the 15th of March 1815, which he was bound and ought to have done, he neglected to finish the same until nearly about a year after that time, and even then he left it unfinished, to her great detriment and injury; and instead of executing the work in a neat, economical and plain manner, he did it in such a manner as greatly and unnecessarily to enhance the costs thereof, against her consent and wishes, and his repeated promises. That she has always [**11]  been desirous and willing to pay the complainant whatever he was justly entitled to for finishing said work, and for the materials furnished by him; but he always demanded to be paid for work done in the lifetime of her husband, and under the contract; and has also demanded a much larger sum than he was entitled to for finishing said work. That she is willing to pay him whatever he may be justly and legally entitled to demand under the said contract, which she alleges he has violated in several respects, but particularly in the time and manner of finishing said work. All which matters and things are, as she is advised, properly and exclusively in the cognizance of a court of common law, and a jury. She therefore prays to have all the advantage thereof in the same manner as if the want of jurisdiction of this court had been presented in the form of a plea or demurrer, &c.

A commission issued, and testimony was taken under it, and the cause argued and submitted, &c.

JOHNSON, Chancellor, (December Term 1823.) On the 11th of January, 1811, William M'Mechen, who then held certain real property in virtue of a deed from Penelope D. Price, and Frederick Price her husband, to him [**12]  in trust for them, joined with them in a deed, by which the same property was conveyed to Alexander Nisbet in fee, in trust "that the said Alexander Nisbet, and his heirs, shall henceforth be and stand seized to and for the sole and separate use and benefit of the said Penelope Deye Price, so that she be permitted to use, occupy, and enjoy the same, and the rents and profits thereof to have, receive and take, and to apply to her own sole and separate use and benefit, her coverture notwithstanding, for and during the term of her natural life," &c. And on this further trust, "that the said Penelope Deye Price shall be suffered and permitted to sell, convey, and absolutely dispose of, by deed or deeds duly executed by her," the property, or such part as she pleased, her coverture notwithstanding.

It is alleged in the bill, and proved by the evidence in the cause, that Frederick Price, the husband, engaged the complainant, a carpenter, to build a dwelling-house on the property, and to find materials for that purpose; that before the same was finished, it being doubtful whether the husband would be able to pay for the building and materials, the complainant was unwilling to proceed [**13]  unless the wife, who had the beneficial interest in the land on which the house was erected, would become responsible. Accordingly, on the 14th of October 1813, an agreement in writing was executed by her, under her hand and seal, of which Alexander Nisbet, the trustee, was apprised, as appears by his admission on the agreement itself. The agreement in substance is as followeth: Whereas Frederick Price, husband of Penelope Price, is now building a house on the land conveyed by M'Mechen to Nisbet, in trust for the purposes mentioned. And whereas Robert Bigham has undertook to complete the unfinished work now about said house, and Penelope Price, being desirous of securing to the said Robert Bigham the payment of the sum which the completing of the said unfinished work may amount to, therefore the agreement proceeds to "authorize Nisbet to hold the tract of land charged with the payment of the amount of the said Robert Bigham's bill of work, as before mentioned. And in case the said Penelope Price shall not pay, or cause to be paid, to the said Robert Bigham the amount of his bill, which shall be ascertained by persons indifferently chosen by Mrs. Price and Robert Bigham," by the first [**14]  of December 1814, then Nisbet is authorized to make sale of so much of said land "as will satisfy the payment of all materials which said Bigham may furnish at the instance of Mrs. Price, and the payment of all unfinished work now about said building, and for all work which he may hereafter do about said building, and ascertained as aforesaid."

After the attention of the court had been called to this cause, and on the 8th of November 1822, an interlocutory decree was passed, in which it is observed, that "it appears by the order of my predecessor that this cause was argued before him at September term 1821, when no authorities in support of, or in opposition to the claim, were produced, in consequence whereof he directed a new argument; and in the order he observed, that a reference to the authorities as to the agreement having been executed by a feme covert, is desirable. None appears to have been submitted to him, nor have any such authorities been laid before me. Nor am I at this time prepared to determine on the merits of the case, either in respect to the obligation of the alleged contract, or its extent. But that as little delay may take place as possible, and as full an [**15]  opportunity be given to the counsel to furnish authorities as the importance of the principle involved in the case demands, it is thought proper to pass an interlocutory decree, by which the sum the complainant may be entitled to recover, (if he can recover any sum,) will be made to appear. Without the aid of a recent examination of the authorities, and with the view of directing the attention of the solicitors to the point on which my opinion is suspended, I would remark, that it is clear that when previous to marriage, a marriage contract is entered into, vesting in trustees property for the sole use of the wife, subject to her disposal and her engagements, there a court of equity would compel a compliance with the terms of her contracts; and where she had been authorized to sell and dispose of the property held in trust for her separate use, there, I presume, it would be equally in her power to encumber the estate with her engagements, on the principle that the greater power comprehends the less. But are there any cases determined in which, after the marriage, the ordinary legal capacity of the wife can be enlarged so as to make her or her property responsible for her contracts?  [**16]  The case of the complainant is hard indeed; for if he has no remedy in this court, it is most clear to my mind, none can be obtained at law." The interlocutory decree then directs four accounts to be made--First, to allow to the complainant a just compensation for the whole of the work and materials. Secondly, only to allow to him for the materials and work after the 14th of October 1813; and if there is any contrariety in the evidence in regard to the value of the work, the two accounts above directed are to be stated according to the average value of the work and materials; and two other accounts, having the same regard to the contract of the 14th of October 1813 from the evidence of the appraisers solely.

On examining the evidence, the auditor discovered that there was no contrariety, and therefore, under the interlocutory decree, he reported two accounts, the one, No. 1, allows to the complainant for the whole of the work and materials. No. 2 rejects for the work and materials since the 14th of October 1813. The report is dated the 27th of January 1823. The sum due, if the complainant is entitled to the whole amount, is, including interest to the 1st of July 1823, $ 4164 63.  [**17]  If entitled to recover only for the work done, and materials found, subsequent to the contract, including interest as above, the amount is $ 3,454. Exceptions have been taken to the auditor's accounts on the part of the complainant.

Notwithstanding the request of my predecessor, and myself, as disclosed in the interlocutory decree, no authorities have been furnished or referred to by the solicitors on either side, and the cause remains to be decided, unaided by the assistance the researches of the counsel could have cast on the subject.

Two questions appear to me to arise in the cause. The first is the agreement, executed by a feme covert in the predicament in which Mrs. Price stood, binding and to be enforced in this court? Second. If obligatory, doth it extend to the whole work, and to all the materials? Cases of this description seldom arise in this state; indeed this is the first of the kind to which my particular attention has been drawn. But after the examination of the English authorities, where similar questions frequently arise, the doubts entertained previous to the interlocutory decree are entirely removed, and I have no hesitation in saying, situated as Mrs. Price [**18]  was when she entered into the agreement, she was competent to bind herself so as to affect the property held in trust for her.

In England, previous to the case of Ringstead vs. Lanesborough, which was determined in the reign of George III, (Co. Bankrupt Laws, 32,) the law appears to have been clearly established, that it was incompetent for a feme covert to enter into any contract that would be binding at law; because she had no power to assent so as to bind herself; for in consideration of law she had no will of her own; for by the marriage contract her will was subject to that of her husband, of course she had no power to bind her husband, and it would be useless to bind herself, as she could have no property. By the marriage her personal property vested in her husband, and during their lives he had the control over the real. 1 Pow. on Cont. 93. But in the case of Ringstead vs. Lanesborough, it was determined that the contract of a feme covert, who had parted from her husband, by mutual consent, with a separate maintenance created by deed at the time of the separation, could be enforced even at law. But Lord Mansfield, in delivering the judgment of the court, declared "that [**19]  his opinion was founded on all the circumstances of the case taken together, and would only be an authority in a case circumstanced exactly similar to the present." In the case mentioned, the circumstance of the husband's being a resident abroad was relied on. But in the case of Bartvell vs. Brooks, determined the year following, (Co. Bankrupt Laws, 36,) a broader ground is taken, to wit, that the feme covert is bound by her contracts if the husband himself is not liable for her debts. The case was this--An action was brought for goods sold and delivered to a feme covert, who pleaded the coverture; to which it was replied, that she lived separate and apart from her husband; that she had a separate maintenance regularly paid, and that the goods furnished were for her separate use and support. To the replication she demurred, which was overruled. In pronouncing the opinion, the court observed that the principle of the judgment in the case of Ringstead vs. Lanesborough was, that the husband was not liable. The court of law having sustained these suits, in the next case of Corbett vs. Poilnitz, (1 T. R. 5,) moved a step farther, and if the principles which governed the last decision are [**20]  to prevail, all contracts of femes covert, having a separate provision, and living apart from their husbands by mutual consent, may be enforced in a court of law, as if made by a feme sole. But the last determination appears not to meet with the approbation of subsequent courts, and the principles on which the judgment was predicated are most unanswerably proved by Mr. Powell to be incorrect. See 1 Pow. on Cont. 81 to 97 inclusive. In the three cases mentioned the deeds or instruments, by which the maintenance was created, were made after the marriage, and not in virtue of a previous marriage contract. Nor does there appear to be any fault found with the decisions, except that they were made by courts of law, whose judgment must be enforced, when pronounced against a feme covert, as if she was a feme sole; that is, her person and all her property be made subject to their operations, not confining them to the fund over which she had the sole control, as would have been the case on an application to a court of equity for redress. The power of the court of chancery to enforce the contracts of femes covert having property held in trust for them, over which they have the control, has never [**21]  been questioned, except when the contract, or intended disposition of the property held in trust exceeds her power, as created and limited by the trust deed. I am perfectly satisfied in this case, that the power of Mrs. Price over the property was full and ample, and that she was competent to enter into the contract in question with the complainant; that she, her coverture notwithstanding, is bound by it, so far as to affect the trust fund. The extent of the agreement remains to be considered.

In this part of the case I am not so clear, but shall give to the contract that construction which is just, and of which it appears susceptible. Plausible reasons may be given limiting its operation to the work done, and to the materials found, subsequent to the date of the contract. To judge by the recitals of the instrument of writing itself, it would seem that she contemplated only to pay for future work and materials; for it recites that "she is desirous of securing to the said Robert Bigham the payment of the sum which the completing of the said unfinished work may amount to." If the body of the instrument had pursued the language of the recital, I should have confined the contract [**22]  to the future work, and future materials; but the language appears more extensive, and capable to comprehend the whole.

From the evidence in the cause, the work appears to have been faithfully done, and it is but just and equitable that the workman should receive compensation for the whole, and not for part only. If, therefore, the contract can embrace the whole, that construction should be given to it. If evidence de hors the instrument can have any influence, it is proved that the whole was to be covered by the contract; for Edmund T. Scarff, her manager on the farm, proves that she told him, Bigham would not go on with the work unless she would pay for the whole, and that she was, to use her language, forced to agree. What motive could induce a carpenter to go on and finish a building, if he was only to be compensated for his future labour and materials? But when the person, with whom the engagement is made, has, or is to have, the use and benefit of the whole building, it may fairly be inferred no reasonable objection would be made against paying for the whole; and if therefore the language of the instrument is sufficiently comprehensive, it ought to embrace the whole.

The [**23]  agreement authorizes the trustee to hold the property "charged with the payment of the amount of the said Robert Bigham's bill of work, as before mentioned;" and in case she should not pay "the amount of the bill, which shall be ascertained by persons indifferently chosen," by the first day of December 1814, "which she hereby promises to do," then the trustee is authorized to sell, &c. Unless the words in this section first taken from the agreement "before mentioned," limits Bigham's bill of work to future work, they are comprehensive enough to embrace the whole claim. But the latter part of the agreement appears more clearly to authorize a compensation for the whole. For the trustee is authorized to sell "so much of said land as will satisfy the payment of all materials which said Bigham may furnish at the instance of Mrs. Price, and the payment of all unfinished work now about said building, and for all work which he may hereafter do about said building."

The only doubt, of which the part of the agreement last quoted is susceptible, is, whether she was to pay for the materials before furnished; for it expressly provides for those which may be furnished; and expressly provides [**24]  for the payment of "all unfinished work now about said building," as well for that which "he may hereafter do;" that is, both unfinished work then done, as well as for all future work, are to be paid for. In my opinion the agreement comprehends all the work and materials. But if the agreement did not extend to the anterior work and materials, yet, as she had the whole benefit of them, and as they were placed on her separate property evidently with her consent, and have not been paid for, even on this ground the complainant would seem entitled to relief.

The exceptions of the complainant, so far as they extend to the account No. 2, omitting to charge the defendants with the $ 488 41, are ruled good; but so far as they relate to the manner of charging the interest in the account No. 1, are overruled, and that account is confirmed--Decreed, that unless the defendants shall, on or before, &c. pay to the complainant, or bring into this court to be paid to him, the sum of $ 4164 63, with interest on $ 2862 29, a part thereof, from the 1st day of July 1823, until paid, together with the costs of this suit, the property in the proceedings mentioned shall be sold, &c. From this decree [**25]  the defendants appealed to this court, where the death of Bigham was suggested, and his executors appeared, and were made parties.  

DISPOSITION:
AFFIRMED.  

HEADNOTES:

Real estate was, after marriage, conveyed in trust for the separate use of the wife, with power to her, among other things, to sell and convey, and absolutely dispose of the same by deed, her coverture notwithstanding--Held, that it was competent for her, during the coverture, to charge such estate with the payment of her debts, and that equity would enforce such a contract by decreeing a sale of the estate.

That the general power granted her of disposing absolutely of the estate, included the power to incumber it by mortgage, or to charge it by contract.

Where the recital of a contract, charging an estate, was, that it was intended to secure one debt, and the body of the contract provided for the payment of another debt as well as the one recited, and there was no proof of mistake or fraud--Held, that the contract was to be considered as including both.  

COUNSEL:
Mayer, for the Appellants. 1. It is attempted, in this case, to charge certain real estate with the appellees' claim, in consequence of the supposed interest in Mrs. Price in it, or of her disposing power over it. The property attempted to be thus affected, is described in a deed of trust of Mrs. Price to Alexander Nisbet, and there the appellees contend such interests and powers are secured to Mrs. Price, as under the contract of that lady with their testator, subject the land to his claim. We shall endeavour, in the first place, to show what interest was given by this deed to Mrs. Price, and what was the nature of the power in regard to the land which it conferred upon her. The deed conveys the land, (Lot No. 1,) to Nisbet, in trust, "to and for the sole and separate use and benefit of Penelope D. Price, so that she be permitted to use and enjoy the same, and the rents and profits thereof," for her life, or until disposed of as thereinafter limited, and upon the "further trust that she shall be suffered and permitted to sell and convey,  [**26]  and absolutely dispose of, by deed or deeds, duly executed by her," the said lot, or any part of it, "for such sum or sums of money, or other consideration," as she may at any time think proper, "her coverture notwithstanding." The deed proceeds then to give her a power of appointment by will, and then limits the estate, in default of appointment, in further trust, "for the right heirs of the said Mrs. Price, and their assigns, as tenants in common, in fee," and that the trustee shall "convey the same accordingly." This conveyance vests in Mrs. Price only a life-estate in the land--and secures the remainder in fee upon it to such persons as shall prove to be her "right heirs"--and the power of sale, &c. imparts to her no additional interest. Although it may be true, (notwithstanding our act of assembly abolishing livery of seisin, of 1715, ch. 47,) that the deed here, since it contains words of bargain and sale, as well as of feoffment, operates as a deed of bargain and sale would in England, and conveys to Mrs. Price only a trust estate; yet it is observable, that the deed secures to her the immediate enjoyment of the land, and its profits, for her life, without the control of the [**27]  trustee either over the land or its product. It secures her, therefore, effectively, an estate such as she would have had under a deed of feoffment to Nisbet, for her use, for life; and though therefore, the statute has not in fact executed the use in her, the peculiar phraseology of the deed requires an interpretation of her interest, as if the use were executed. This too, is the more evidently the right construction, when we find that she has, by the terms of the deed, no power secured to her of disposing of her life-estate, independently of her husband's concurrence, and differently from that mode of alienation, which by our acts of assembly is enjoined for a feme covert's interest in land. In England it is usual, as will appear in almost all the cases there which relate to the questions now involved, the beneficial interest is to be enjoyed by the wife derivatively from the trustee; as, for example, where she is to receive the rents, the trustee is to have them in trust, to pay them over to the feme covert. This gives the trustee a control over the substance and usufruct of the estate, and makes him, in some cases, as the depository of the beneficium of the trust, amenable to a [**28]  court of chancery, and virtual surety to the extent of his trust-avails for the wife.

2. The estate given to Mrs Price by the deed of trust to Mr. Nisbet, is only for life. The ultimate limitation to her heirs, refers to them as heirs, only descriptione personarum. It eventually gives the land, in default of her appointment, to her right heirs "in fee," and as "tenants in common." The superadded words "in fee," of themselves, denote the "right heirs" to be purchasers, as it makes them the propositi and the beginning of an estate "in fee;" and then the qualifying their estate as a tenancy in common, contrary to what it would have been if by descent, confirms the idea that they take by purchase and not by limitation. It is to be remarked too, that the estate is to be conveyed to the heirs by the trustee, for the expressed purpose of putting an end to the trust, and giving them the legal estate. The estate, therefore, secured to them is a legal estate, while Mrs. Price's precedent life-estate is equitable. These two estates cannot coalesce to make up the fee in her, and hence Mrs. Price can take only a life-estate, and the rule in Shelly's case cannot serve here to enlarge her interest [**29]  into a fee. It is, besides, to be observed, that a court of equity does not, in reference to equitable estates and trust settlements, hold itself bound by the rule in Shelly's case, with the same invariable strictness that it is applied, by courts of common law, to legal estates. Chancery never does enlarge the precedent life-estate into an estate in fee simple, or fee tail, in consequence of a subsequent limitation, unless by not doing so they violate the manifest intention of the grantor. It cannot be pretended, that any such intention is indicated here--but, on the contrary, the words, and the whole scope of the trust, show that Mrs. Price was meant to have only a life-estate. No power being reserved to Mrs. Price of disposing of her life estate, she could not charge it, as pretended by the appellees, and could convey it only in conjunction with her husband. There is nothing, therefore, to which the appellees' demand can apply.

3. The power of selling the fee, reserved to Mrs. Price, does not vest in her the fee simple interest. Conferring on her no right to the proceeds of sale, and not showing how they shall be appropriated, she stands invested with a mere authority, uncoupled [**30]  with any interest, except perhaps as at common law, and subject to all her husband's rights. He might have disposed of the proceeds, and could only have been prevented by the interference of chancery, as in ordinary cases of the product of a wife's interest in realty. Without the most explicit provisions to that effect, a wife obtains no separate estate in land under a settlement. The authorities show, that the terms must be so unequivocal and exclusive, as to leave no question that the estate is to be separately and exclusively her's.

4. The settlement does not authorise Mrs. Price to sell the land as if she were a feme sole, but empowers her to do so only by deed duly executed. It must be executed by her and her husband, according to our act of assembly, which comprehends all conveyances in which a feme covert is "named as a grantor." The proper construction of the power of sale is, according to Chudleigh's case, that the trustee here has the entire legal and beneficial interest, and the purchaser obtains it by way of a springing use. The power here excludes the husband's marital interest, not the marital care and guardianship in reference to her conveyances, on account of which [**31]  superintendance the law requires him to unite in them.

5. There was no contract "to sell" here, as pointed to by the power; and no attempt to execute the power; and without such an attempt a court of equity never interposes to carry a power into specific performance. The contract between Mrs. Price and Bigham is not to be effectuated as an informal execution of her power, under the settlement, of "selling and disposing."

6. The contract even of one sui juris, like that between Mrs. Price and Bigham, would not bind specific property, as it is pretended shall be done here.

7. It is only personalty, secured to a wife's separate use, that has ever been esteemed, without an express special power of disposing and charging it, subject to the wife's power in those respects as if she were a feme sole--and rents and profits, regarded as personalty, and when under the trustee's control. Real estate, though settled to her separate use, is not, from that circumstance alone, liable to be disposed of and charged by her as if she were unmarried. She must be expressly authorised to that effect, or the trustee must have control over the rents and profits. There is no valid charge therefore [**32]  here.

8. A decree, especially under the circumstance of this case, against a wife's separate estate, must be executed through coercion of the trustee, under his power over the usufruct of the land. No decree, as was done in this instance, can be rendered against the wife, or for the sale of the land.

9. The contract between Mrs. Price and Bigham should, if regarded at all, be considered, according to the original understanding, as embracing the work to be done, and not that already executed. The recitals of the contract show that this was the intent; and the provision for the old work is foisted into the agreement fraudulently, as Nisbet proves, and as Bigham himself meant, when he said there was a "take-in" in it. Parol evidence on this head, in withstanding specific performance, is admissible to prove fraud or mistake.

10. There is no proof as to the extent of work done before, and that done after the contract. Part of the account is a demand of Bigham and Barber, and not Bigham alone. The work was extravagantly done. Bigham admitted he had lost his demand for the old work. Neither the value of the old, nor of the new work, appears to have been ascertained according [**33]  to the mode prescribed by the contract.

11. A contract, to be specifically performed by chancery, must be above all exception, and free from all suspicion. This contract is not only liable to suspicion, but proved to be fraudulent, by its recitals and structure.

12. Nisbet, as a disinterested person, is a competent witness; and having been cross-examined without protest, his evidence is admissible, although no previous order for examining him was obtained by Mrs Price.

13. The position that Mrs. Price's estate is to be dealt with, on the score of liability for her engagements, as if it were a use executed, is enforced by analogy from cases of constructive trusts. The principles there, show Mr. Nisbet, in this case, to be a mere nominal instrument, in reference to the trust, with no control, liable to no obligation, and to no degree of equity, in reference to the land, or its rents and profits--the only mode by which a feme covert's separate estate can be made liable for her engagements.

14. At all events, Mr. Nisbet, as the guardian of the estate, and not a stranger, should be the trustee for any sale ordered under the proceeding--And all the land should not be [**34]  absolutely decreed to be sold, but only the necessary part for satisfying the demand.

15. We have finally made a question, whether the deed of trust to Mr. Nisbet is valid, and whether it has fully, or in any respect, superseded or revoked the prior deed of trust to Mr. M'Mechen. It will be observed, that by that original deed of trust to M'Mechen, the lot No. 1, which is the only land comprised in the deed to Nisbet, is conveyed in trust for Mr. Price, after Mrs. Price's death; and after his death, as she should appoint by will; and to her heirs, in default of appointment. There is no express limitation of an estate for life to Mrs. Price: she, therefore, takes a resulting use out of her former estate for life. The conveyance to M'Mechen is by bargain and sale, and the limitations are therefore trust-estates, or uses on uses. With those estates, consequently, Mrs. Price's estate, being but an abiding use out of her primitive interest, cannot unite; and therefore the final limitation to her heirs cannot avail to give her an estate in fee, which she professes to dispose of by the deed to Nisbet, and which, to make that deed effectual, she must have had. To the same point we might [**35]  here apply the remarks we used in reference to the right of the heirs, as mentioned in the deed to Nisbet, so as to take the limitations there, according to the construction of courts of equity, out of the rule in Shelly's case. In the case of Pybus vs. Metford, where there was also an estate for life by implication, and remainder to the heirs of the tenant for life, and where the remainder was held to enlarge the estate for life, according to Shelly's case, the settlement was by covenant, on the part of the tenant for life, to stand seized to uses, and as well the estate for life as the remainder was served immediately out of the original use. As to the fee, therefore, we think it indisputable that the deed to Nisbet did not revoke the deed to M'Mechen; and so far as the claim of the complainant reposes on the power of selling lot No. 1, as reserved to Mrs. Price in the deed to Nisbet, it certainly cannot prevail. It is plain, then, that the power of selling, or any actual or constructive limitation of the fee, in the deed to Nisbet, is entirely invalid. And we further contend, that that deed does not operate at all, and not even on Mrs. Price's life-estate as secured to her by the [**36]  deed to M'Mechen. The avowed purpose, and moving consideration of the deed to Nisbet, as recited in it, was to change the trusts of the prior deed. In regard to Mrs. Price, no change of estate was made, for in both deeds she is alike provided for, and in neither has she a power of disposing even of her life-estate. The leading object of the deed, the change of the trusts, could not be gratified in consequence of the peculiar limitations of the deed to M'Mechen; and therefore, we insist, that the deed to Nisbet cannot, for any purpose, or to any extent, be operative. For it must be remembered, that courts of equity, in construing deeds of trust, regard the declared intention of the grantors as a binding rule, and as the object for which alone the deed is to stand. Hence, in New York, where the estate described would, if a legal estate, be deemed only for life, it has been declared a fee simple interest, because no other would serve the intention of the grantor, and answer his defined purpose.

On the second point, he cited Fearne Cont. Rem. 84, 86, 88, 90, and the remarks on the case of Bagsham vs. Spencer.

On the third point--3 Leon 71. Bradley vs. Westcott, 13 Ves. 445, 451.  [**37]  Thorpe vs. Goodall, 17 Ves. 388, 460, 462. Townsend vs. Windham, 2 Ves. 3. Darley vs. Darley, 3 Atk. 399. Lee vs. Prieaux, 3 Bro. Chan. Rep. 382. Lumb. vs. Milnes, 5 Ves. 517. Hartley vs. Hurle, Ibid 540. Brandon vs. Robinson, 18 Ves. 434. Rich vs. Cockell, 9 Ves. 370, 377. Brown vs. Clark, 3 Ves. 166. Dakins vs. Berisford, 1 Chan. Cas. 194. Jacobs vs. Amyatt, 1 Madd. Rep. 376. 1 Madd. Chan. 372, 380. Birch vs. Blagrave, Amb. 264. Wright vs. Englefield, Ibid 461. Peacock vs. Monk, 2 Ves. 190. Wright vs. Cadogan, 6 Bro. Parl. Cas. 156. Rippon vs. Dawding, Amb. 565. Dillon vs. Grace, 2 Sch. & Lef. 463. Hulme vs. Tenant, 1 Bro. Chan. Rep. 16. S. C. 2 Dick. 560. Fettiplace vs. Gorges, 1 Ves. jr. 46. S. C. 3 Bro. Chan. Rep. S. Pybus vs. Smith, Ibid 340. S. C. 1 Ves. jr. 193 Rich vs. Cockell, 9 Ves. 369. Wagstaff vs. Smith, Ibid 520. Sturgis vs. Corp, 13 Ves. 190. Whistler vs. Newman, 4 Ves. 129. Grigby vs. Cox, 1 Ves. 518. Essex vs. Atkins, 14 Ves. 547. Mores vs. Huish, 5 Ves. 692. Hulme vs. Tenant, 1 Bro. Chan. Rep. 17, (note.) Methodist Episcopal Church vs. Jaques, 3 Johns. Chan. Rep. 113.

On the fourth and fifth points--7 Bac. Ab. tit. Uses and Trusts, 112; and Chudleigh's case,  [**38]  1 Coke, 121.

On the sixth point--Bull vs. Vardy, 1 Ves. jr. 270. Arundel vs. Phillpot, 2 Vern. 69. Hulme vs. Tenant, 1 Bro. Chan. Rep. 21. Thorpe vs. Goodall, 17 Ves. 388, 460, 462. 2 Madd. Chan. 372, 380.

On the seventh and eighth points--Duke of Bolton vs. Williams, 2 Ves. jr. 138. Jones vs. Harris, 9 Ves. 486, 498, 521. Wagstaff vs. Smith, Ibid 521. Hulme vs. Tenant, 1 Bro. Chan. Rep. 17, (note.) Dillon vs. Grace, 2 Sch. & Lef. 456. Heatley vs. Thomas, 15 Ves. 596. Standford vs. Marshall, 2 Atk. 69, Lee vs. Muggeridge, 1 Ves. & Beam. 118. Bullpin vs. Clarke, 17 Ves. 365. Bull vs. Vardy, 1 Ves. jr. 270. Arundel vs. Phillpot, 2 Vern. 69. Hulme vs. Tenant, 1 Bro. Chan. Rep. 21. Thorpe vs. Goodall, 17 Ves. 388, 460, 462. 1 Madd. Chan. 372, 380.

On the ninth point--1 Pow. on. Cont. 404, 294, 432, 427, 428. Ham. Dig. 288. 2 Eq. Ca. Ab. 480, 482. 1 Fonbl. 188, 189. 2 Fonbl. 43, 135.

On the eleventh point--1 Fonbl. 122, (and note.) 1 Pow. on Con. 294. 2 Eq. Ca. Ab. 480, 482. Montague vs. Maxwell, 1 P. Wms. 620. Brooke vs. Turner, 1 Mod. 212.

On the twelfth point--1 Phill. Evid. 40. Goodtitle vs. Welford, Dougl. 140. Goss vs. Tracy, 1 P. Wms. 287, 290. Lowe vs. Jolliffe,  [**39]  1 W. Blk. Rep. 366. Anonymous, 1 Mod. 107. 1 Eq. Ca. Ab. 225. 2 Eq. Ca. Ab. 396, 397.

And, on the thirteenth point--Hulme vs. Tenant, 1 Bro. Chan. Rep. 16. Harg. Co. Litt. on constructive trusts.

Moale and R. Johnson, for the Appellees. 1. To show that no suit at law could be sustained for the recovery of the claim of the appellees, they cited 1 Pow. on Cont. 81 to 87. Marshall vs. Rutton, 8 T. R. 545. Boggett vs. Frier, 11 East, 301. Kay vs. Dutchess de Pienne, 3 Campbl. 12. Marsh vs. Hutchinson, 2 Bos. & Pull. 226. Burfield vs. De Pienne, 5 Bos. & Pull. 380. M'Namara vs Fisher, 8 T. R. 302. Derry vs. Mazarine, 1 Ld. Raym. 147. Compton vs. Collinson, 1 H. Blk. 348, 349; and M'Namara vs. Fisher, 3 Esp. Rep. 18.

2. As to the estate which Mrs. Price took under the deed of trust of 1811, and whether the limitations in that deed were executed by the statute of 23 Hen VIII; and to show that it was a trust, and not a use, and not executed by the statute, they cited Harton vs. Harton, 7 T. R. 648 Shapland vs. Smith, 1 Bro. Chan. Rep. 75. Nevil vs. Saunders, 1 Vern. 415. Gregory vs. Henderson, 4 Taunt. 772. 1 Madd. Chan. 360. Carwardine vs. Carwardine, 1 Eden's Rep. 27, 36,  [**40]  (note a.) 2 Blk. Com. 365, 335, 336, (and note by Christian;) and West vs. Biscoe, 6 Harr. & Johns. 465

3. That the appellees were entitled to the relief prayed in the bill; and that Mrs. Price had a right under the limitations in the deed to charge the land; and that she had charged it with the payment of the appellees' claim, they cited Hulme vs. Tenant, 1 Bro. Chan. Rep. 16, 21. Grigby vs Cox, 1 Ves. 517. Parkes vs. White, 11 Ves. 208. Methodist Episcopal Church vs. Jaques, 3 Johns. Chan. Rep. 77; and Skinner vs. White, 17 Johns. Rep. 358.

Curia adv. vult.  

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

OPINIONBY:
EARLE 

OPINION:

 [*316]  EARLE, J. at this term delivered the opinion of the court. We have carefully reviewed the chancellor's decree in this case, and after deliberately considering the objections to it, we cannot see any cause to differ in opinion with him.

 [*317]  The two principal objections consist of a question of fact, and a question of law. The first is to the claim or demand exhibited by Bigham, the complainant; the last arises upon the marriage settlement appearing in the record. They will be considered in the order [**41]  in which they are here presented.
The claim set up by the complainant, is a carpenter's account for materials found, and work done, to a large dwellinghouse, built by him on the land of the defendant, Penelope D. Price, for which he complains he has never been paid. The payment of this debt is not insisted upon, nor even pretended; but it is urged that the building was not finished by the time specified in the contract; that the account is an extravagant one, consisting of many items of expensive work, done to swell and enhance the bill, and that a part of it, performed under a contract with the husband of P. D. Price, since deceased, she was made to assume by unfair and improper means.
These objections to the complainant's demand are to be judged of by the testimony in the cause, which has been attentively examined by the court; and after much reflection, we do not think they are sustained. The delay in the completion of the edifice is attributable to the defendant, P. D. Price, herself, who suffered the workmen to board at an inconvenient distance from their work, and to be often without employment for want of materials, which were to be hauled in her wagon. The work [**42]  alleged to be extravagant is suitable to the original plan and outline of the building, and some of it, particularly the inside window shutters, was put up by P. D. Price's special directions; and her written assumption to pay for the work about the dwelling-house on her land, in her husband's lifetime, was not obtained by unfair and improper means, being a clause in an agreement entered into by her, under the immediate eye of her husband, and with the express approbation of the defendant, Alexander Nisbet, who is the trustee of her estate, and undertook the special business of guarding and protecting her interest.
The question of fact being disposed of, the law objected to the decree, is next to engage our attention. It brings into view a point, which has never before, perhaps, been acted upon by the courts of this state. A married woman, by her contract 

 [*318]  under seal, charges the payment of a debt on her real estate, which was settled on her by a deed of trust, for her separate use, with a power to sell and convey, and absolutely dispose of the same, by deed or deeds duly executed by her, her coverture notwithstanding; and the question is, how far a court of equity [**43]  will sanction and enforce the contract, and decree a sale of the land to pay the charge?
Those kind of settlements are in derogation of marital rights, and generally speaking, are not productive of domestic happiness; and perhaps it might be questioned, whether it comports with public policy to favour and encourage them. That they are sometimes commendable, and even useful, cannot, however, be doubted by any. When they are entered into after marriage, they are commonly suggested by some necessity not discovered before the nuptial tie, and are often the means of rescuing families from penury and distress. What led to the settlement under consideration, it is not for us to surmise, but its having been executed subsequent to the union between the husband and wife, is certainly not a circumstance unfavorable to a liberal construction of it.
With these sentiments of the instrument, we proceed to the interpretation which ought, we think, to be given to it. And it appears to us we cannot be mistaken when we observe, that the jus disponendi imparted to the wife by this deed of settlement, necessarily includes in it the power to incumber or charge the land conveyed to her as her separate [**44]  property. She may sell and convey, and absolutely dispose of her estate, by a deed or deeds duly executed by her, and this, agreeably to the terms of the settlement, without the assent of her trustee, or the concurrence of her husband. If then, by a deed or deeds duly executed by her, she can sell and dispose of the whole interest in her land, how can the power to incumber it by mortgage, or charge it by contract, be denied to her? The law allows her, notwithstanding her coverture, to part from her whole estate, upon the principle, that in doing so she acts as a feme sole as to her separate property, and upon the like principle, and to promote fair dealing, it must be conceded to her, to incumber and charge it with her debts.
The contract of the 14th of October 1813, between P. D. 

 [*319]  Price and Bigham, authorizes the trustee Alexander Nisbet, to hold the land charged with the payment of the amount of his bill of work, and in case it is not paid by a given time, it authorizes him to make sale of so much thereof as will satisfy the payment of it. And can there be a moment's doubt with any one, that if she had been in fact a feme sole, equity would have enforced [**45]  the charge according to the agreement? The greater part of this work was moreover furnished on the faith of this contract, and there seems to be a peculiar equity in making the property, improved by his skill and labour, liable to Bigham for the payment of his bill. We decide the case, however, upon the ground of the charge being within the meaning and spirit of the disposing power over her separate estate, secured to the wife by the deed of settlement.
We might perhaps have left the adjudication of this case to rest on the broad grounds, that P. D. Price made the contract as a feme sole, and that her separate estate is liable for the payment of this debt, without a special charge to make it so; but there is no necessity to insist here upon this doctrine, and therefore we intend to observe silence in relation to it. We choose rather to base our opinion on the position, that P. D. Price, having, under the appointing and disposing power of the settlement, specifically charged her separate property with the payment of the debt, it ought to be sold to satisfy it.
DECREE AFFIRMED;
And also Decreed, that unless the appellants pay to the appellees the amount ascertained [**46]  by the said decree to be due by the appellants, with interest, &c. as also the costs incurred by the appellees' testator in the Court of Chancery, and by them in this court, or pay the same into the Court of Chancery on or before, &c. the property mentioned in the proceedings, or so much thereof as may be necessary, be sold according to the said decree of the Court of Chancery, and pursuant thereto, for the purpose of satisfying the sum of money so decreed, with the interest thereon, and the costs aforesaid; and that the Chancellor make all necessary orders for carrying into effect the decree of the Court of Chancery, and of this Court.  

33 of 33 DOCUMENTS 

DALLAM vs. DALLAM'S Lessee.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

7 H. & J. 220; 1826 Md. LEXIS 33 

June, 1826, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Harford County Court. Ejectment for a tract of land called Palmer's Forest. Plea, not guilty, and issue. A verdict was taken for the plaintiff, subject to the opinion of the court on a case stated, (which is set out in the opinion delivered by this court,) and which raised the question as to what estate Josias Dallam took under this devise in the will of Frances Middlemore, dated the 11th of August 1755.--"I give and devise unto the aforesaid Richard Dallam and Josias Dallam, and to their heirs and assigns forever, as tenants in common, equally to be divided between them, all that tract of land called Palmer's Forest, lying on the west side of Swan creek; but if either of them dies before the age of twenty-one years, and without issue, then I will that one equal half part of the said land be held and enjoyed by Gouldsmith Garretson, (son of George and Martha Garretson,) his heirs and assigns, forever, to whom I give and devise the same accordingly. And in case the said Richard Dallam and Josias Dallam should both die before the age of twenty-one years as aforesaid, and without issue, then I give and devise the whole of Palmer's Forest to the aforesaid Gouldsmith Garretson,  [**2]  his heirs and assigns, forever." The County Court, [Ward, A. J.] was of opinion, that Josias Dallam took only an estate tail under this devise, and gave judgment for the plaintiff. From that judgment the defendant appealed to this court.  

DISPOSITION:
JUDGMENT REVERSED.  

HEADNOTES:

M, by will devised to "R & J, and to their heirs and assigns, forever, as tenants in common, equally to be divided between them, all that tract of land called P. F; but if either of them dies before the age of 21 years, and without issue, then I will that one equal half part of the said land be held and enjoyed by G, his heirs and assigns, forever; and in case the said R & J should both die before the age of 21 years as aforesaid, and without issue, then I give and devise the whole of P. F. to the aforesaid G, his heirs and assigns, forever."--Held, That R & J took, under this devise, an estate in fee in the land devised, defeasible upon their dying before the age of 21, and without issue, and to become absolute either on their reaching that age, or dying under that age, leaving issue.

A limitation over on a dying without issue generally, when applied to real estate, means an indefinite failure of issue; though it is otherwise in bequests of personal property.

In order to effectuate the intention of the testator, the word or, will be construed and, or and, or.  

COUNSEL:
R. Johnson, for the Appellant, contended, that by the true construction of the devise in question, Josias Dallam took a fee simple interest, descendible, on his death in 1820, to his children equally. He cited Barnitz's Lessee vs. Casey, 7 Cranch, 456, 468, 469. Brogden vs. Walker's Ex'r. &c. 2 Harr. & Johns. 285. Todd et ux. vs. Pratt, 1 Harr. & Johns. 465. Hauer vs. Sheetz, 2 Binney, 532. Barker vs. Suretees, 2 Stra. 1175. Frammingham vs. Brand, 1 Wils. 140; and Thrustout vs. Denny, Ib. 270.

Mitchell, for the Appellee. The parties in this case are two sons of Josias Dallam--William M. Dallam, the eldest, and heir in tail, if Josias Dallam took an estate tail under Mrs. Middlemore's will. There are five classes of gifts in the will to Josias Dallam, who appears to be the first object of bounty of the testatrix, and after his death, his issue, and after his issue spent, then Gouldsmith Garretson in preference to the [**3]  collateral heirs at law. All the devisees and legatees, from the face of the will, are evidently nephews and nieces of the testatrix. Who her heir at law was does not appear.

1. This is a good remainder, created at the same time with the particular estate tail, and by the same instrument. The remainder-man was in esse, in whom it could vest, and to take effect eo instanti the particular estate, determined by failure of issue of the first devisee in tail. No fee was limited on a fee; for the first limitation was reduced to an estate tail by use of the subsequent word issue. Where a devise over can be upheld as a remainder, it shall never be construed an executory devise. 2 Fearne, 210, 211, 2, 3, 4. 3 Com. Dig. tit. Devise, (N. 15, 16, 17,) 448, 450. Tenny vs. Agar, 12 East, 263, 264. Purefoy vs. Rogers, 2 Saund. 388. Plunkett vs. Holmes, Sir T. Raym. 29. Doe vs. Morgan, 3 T. R. 763. Remainders tend less to perpetuity than executory devises, and in this country emphatically ought to be preferred, as those may be barred by fine, &c. but executory devises cannot. The legislature of this state, by abolishing estates tail, did not intend to favour executory devises, which tend to perpetuities [**4]  more strongly. It is said in Fortescue, that executory devises began soon after the stat. 29 Hen. VII. In Strange, 130, that they began in the time of Elizabeth. In Porter vs. Bradley, 3 T. R. 146, by Lord Kenyon, that they began in the time of Charles I; yet Lord Kenyon in that case calls Pells vs. Brown, which was decided in the time of James I, the magna charta of this branch of the law.

2. The intent of the testator is the pole-star to guide courts in the construction of a will. That in favour of the first devisee is subordinate to the general intent, and must yield if inconsistent with it. Such intent must be subservient to the rules of law; and if technical words are used which have been long settled as rules of real property, they must receive a technical construction. The rule is that the use of the word issue, in reference to a devise by word heirs, restrains the broad import of the word heirs to the particular heirs included within the word issue. Thus a devise to A, and his heirs and assigns forever, but if he die without issue, then over to B in fee, is always construed an estate tail in A, as the real intent of the devisor. And this whether such a devise be to a stranger,  [**5]  or to a relation of the first devisee, or the testator. Secus, if devise over be upon the devisee's death without heirs. In that case there is a distinction between a devise over to a relation or to a stranger. Hence it is an universal rule, subject to no exception--wherever an estate is devised for life or in fee, and an estate over is limited after dying without issue, or without heirs of the body, &c. of the first taker, the first devise is modified and explained by the subsequent words, and is either enlarged in the first instance, or restrained in the latter, to an estate tail. Porter vs. Bradley, 3 T. R. 143. 3 Com. Dig. 428. 6 Cruise's Dig. 269, 270, and cases there cited. Price vs. Huntt, Pollexf. 645. Clache's case, Dyer, 330, b. Doe vs. Rivers, 7 T. R. 272. Forth vs. Chapman, 1 P. Wms. 663. Hawley vs. Northampton, 8 Mass. Rep. 43. The validity of the devise over has no influence upon the construction of the words limiting the quantity of estate given to the first taker. The first words are modified and explained by the restrictive words in the subsequent clause, notwithstanding the devise over may be void. As a limitation over upon an indefinite failure of issue is void as [**6]  an executory devise, yet it may be good as a remainder upon the estate tail by implication. 2 Fearne, 182. Brown vs. Jervas, Cro. Jac. 290. 6 Cruise, 270, s. 8.

3. Other conditions, annexed to the dying without issue, do not restrain the legal import of these words as to the quantity of estate of the first taker: but the word issue is still explanatory and restrictive of the word heirs, as to the line of heirs intended, and will modify the first devise in fee, and reduce it to one in tail, although this contingency may have any other added to it to limit and control the period when the devise over is to take effect, or to be defeated. Thus, if he die without issue and unmarried, after a devise in fee--Held to reduce the fee to an estate tail; as in Jackson vs. Billinger, 18 Johns. Rep. 369. So to A, and his heirs, and if he die without issue, after paying £  100 to B--Held, an estate tail in A. Wilson vs. Dyson, Sir T. Raym. 425. 3 Com. Dig. 428. So, if he die without issue, living B. Clache's case, Dyer, 331. a. So if he die without issue and under 21. Soulle vs. Gerrard, Cro. Eliz. 525. Hilliard vs. Jennings, Cro. Jac. 415. Even in personalty. Roosevelt vs. Thurman, 1 Johns.  [**7]  Cha. Rep. 227, 228. Cruger vs. Heyward, 2 Desauss. 112. So White Acre to A, and Black Acre to B, and their heirs, forever; but if either die under 21, and without issue, the survivor to be heir to the other--Held estates tail. Chadock vs. Cowley, Cro. Jac. 695. Pollexf. 487. 6 Cruise, 270. Collinson vs. Wright, 1 Siderf. 148. 4 Bac. Ab. 251, 294. 2 Fearne, 390. So, if he die without issue in the lifetime of his sister B. In every case of an executory devise there are two distinct questions, 1. What quantity of estate the first taker takes under the will; and this depends on the import of the technical words used. 2. What is the period limited by the will for the vesting of the executory devise. This is a mere question of policy, having no bearing on the technical terms.

4. The will must in all cases be construed according to its prospective import, and with reference to all possible contingencies in futuro. It must speak from the CREATION of the estate, and is never to be modified or varied in its construction by subsequent events and accidents. Goodman vs. Goodright, 2 Burr. 878, per Ld. Mansfield. 6 Cruise Dig. 449. 2 Fearne, 159, 160. 3 Com. Dig. tit. Devise, 450. Though this [**8]  rule is acknowledged by all judges, yet they do in fact construe the will from the subsequent event, by holding the devisee tenant in fee simple absolute when he attains 21, if the first limitation is to him in fee, with a devise over on his dying under 21; and without issue. Such was the case in Barnitz Lessee vs. Casey, 7 Cranch, 426. Such was the case of Hauer vs. Sheetz, 2 Binney's Rep. 532; though the decision in the latter case was upon the charge laid on the devisee. So the English cases in the time of Ld. Hardwicke, and several cases since. All of these cases were adjudged upon subsequent events, after the creation of the estate.

5. Where the devise over is made to depend upon two or more contingencies, whether these are connected by the copulative (and,) or disjoined by the disjunctive (or,) all the contingencies must happen--all must concur to give effect to the devise over. If either fails to happen, the devise over is defeated. Thus in this case, if the first devisee attains full age, the limitation over is defeated, although he should die without issue. So if he leave issue, though he should die under 21, it is sufficient to defeat the contingency over, and the first [**9]  devisee leaves an absolute estate tail to his issue, which fails only on general failure of issue, and then the estate reverts to the heir at law of the devisor. Wright vs. Kemp, 3 T. R. 472. Fairfield vs. Morgan, 5 Bos. & Pull. 38. Doe vs. Jessep, 12 East, 288. Hauer vs. Sheetz, 2 Binney's Rep. 544, per Tilghman, Ch. J. And the courts will construe the particles or and and, one for the other alternately, so as to carry this rule into effect in favour of the issue of the first devisee, and to prevent his disinherison by a literal interpretation of the devise. Fairfield vs. Morgan, 5 Bos. & Pull. 38. If both must concur, and one of these is too remote, or can possibly in any future state of things be too remote, the limitation over cannot take effect as an executory devise; and in such case it must either fall altogether, or must be construed a remainder, if the particular preceding estate be sufficient to support it as a remainder. For the only contingencies upon which a good executory devise can be limited, are such as must necessarily happen within the prescribed period, and which cannot possibly happen after a life or lives in being, and 21 years and a fraction of a year. Now if [**10]  one of these contingencies be the death of the first devisee without issue, and such devisee should leave issue upon his death under 21, the failure of that issue is a condition precedent to the estate of the executory devisee; and as such issue may not fail until after the prescribed period, or may possibly endure until the prescribed period is past, the devise over is not a good executory devise, but must take effect as a remainder, or not at all. The cases then that oppugn this construction are, either, 1. Those cases where the contest was between the executory devisee, and the heir of the first devisee, which do not apply to this case, where the contest is between the eldest and younger son of the first devisee, and depends on the quantity of the estate taken by the first taker, and no question arises as to the validity of the devise over. 2. Those cases arising on marriage articles, and family settlements, where the issue are considered as purchasers, and the words used are those of both parties. 3. Those cases where subsequent limitations were to survivor, or other relation of devisor or devisee, and where such limitations were considered as restrictive of the general import [**11]  of the phrase "dying without issue." 4. Cases relating to personal property, where words have been considered as restrictive of the limitation over within the prescribed period, which would not be so construed in reference to real estate. 5. Cases of trusts which though partially too remote, equity will execute by the rule of cy pres as near to the apparent intent as the rules of law will admit. Or, 6. Cases where the devises have been construed from the event, and not from the death of the devisor, when the estate was created.

All these cases are to be laid out of view as inapplicable to the present cause.

In the case of Long vs. Blackall in 1797, 7 T. R. 98, Lord Kenyon lays down the true rule as to executory devises. "It is an established rule," says he, "that an executory devise is good if it must necessarily happen within a life or lives in being, and twenty-one years and the fraction of another year, allowing for time of gestation." So in Goodtitle vs. Wood, in 1740, in C. B. 7 T. R. 99, note (a,) Lord Chief Justice Willes had recognized the same rule, and says, executory devises to be good must be so limited, that "the contingency must happen within the compass of [**12]  a life or lives in being, or a reasonable number of years. So extended to a child in ventre sa mere, as that contingency must necessarily happen within less than nine months after the death of a person in being." So Mr. Hargrave, in his Law Tracts, 1 vol. 518, says, "every contingency, which is not such that if it ever happens it must necessarily happen within the period prescribed, is too remote for an executory devise." Yet Lord Kenyon, in Roe vs. Jeffrey, in 1798, 7 T. R. 591, says, "nothing can be clearer in point of law, than that if an estate be given to A in fee, and by way of executory devise an estate be given over which may take place within a life or lives in being, and twenty-one years and a fraction of a year afterwards, the latter is good by way of executory devise|" Hence the spurious construction that has sprung up in modern cases, that the devisee, where the limitation was first in fee, and then over upon his dying without issue and under twenty-one, took a fee simple on his attaining full age, otherwise not; a construction not arising from the words of the will, but from the event--from subsequent accidents, by substituting may for must. It is said that such a limitation [**13]  over is good, because the contingency may happen by his death under age, which is not too remote. But the true rule is, that it must necessarily happen within the prescribed period. Now it is clear, that if the first devisee should happen to die under twenty-one, having first married and had issue, the contingency has not happened at his death, as to his dying without issue, unless these precise words are to receive a new and unauthorised interpretation in this case from that which they have received both in courts of law and equity for more than four centuries; which is, that he only dies without issue, when the whole line of descendants is spent. In this hypothetical case, therefore, the first devise is an absolute estate in the first devisee, descendible to his issue, although he dies under twenty-one; and this is nothing more than an estate tail. It is construed an estate tail, either, 1st. Because the limitation over is upon an indefinite failure of issue alone and unrestricted, where issue is left by a devisee dying under age, and so too remote to be a good executory devise, and so must be construed an estate tail to give the remainderman any benefit from the limitation over.  [**14]  Or, 2dly. If the indefinite import of these words is to be considered as restrained by the additional contingency of his dying under age, and so may take effect as an executory devise. Still it may take effect also as a remainder, in case of his death under age, vesting in possession only on failure of the descendants of the child born during the devisee's minority. And then the rule above stated applies, that courts must construe it a remainder. The rule being imperative that judges shall wield the power of the context in aid of constructive remainders, and against executory devises. Yet courts, in modern times, though they dare not deny this rule, do in effect lean against it in their construction, and in favour of executory devises, and have so done, with few exceptions, since the case of Pells vs. Brown, Cro. Jac. 592. In that case the restriction was applied by the devisor to the words, "dying without issue, living W." fixing the period when the issue was to fail. Whereas in this case the dying under twenty-one, and without issue, has no words of restriction as to the failure of issue; for if issue is born, even after the death of the first devisee under twenty-one, (he having [**15]  left his wife ensient,) that issue shall take to the exclusion of the devisee over. How long shall the devisee over be postponed in this case? It may be answered, until the failure of this line of descendants, and no longer; which gives effect to the general intent of the testator to provide for the devisee over as the next favourite to the first devisee. But it is said by the counsel opposed to me, that he shall be postponed forever, and he will construe it an executory devise, in order to defeat the limitation over, and the general intent; and in order to support it as an executory devise, he construes the first devise as an estate in fee simple, though the very same words in other cases are construed as an estate tail--the general words being restrained by the subsequent word issue. It follows, that by our construction, effect is given to the remainder over; by the opposite construction the remainder over is defeated in favour of collateral relations of the first devisee, who never entered into the view of the devisor. So in devises of chattel interests, if between the term of the ancestor, and the estate of his heirs, there is no vested freehold remainder, the heirs can only take [**16]  by way of executory devise, which ex vi termini implies an estate not executed in the ancestor." Perrin vs. Blake, per Sir W. Blackstone, J. Hard. L. T. 505. Here is a freehold estate vested in the first devisee, and executed in him, and a remainder "passing out of the devisor at the same instant to the devisee over who is in esse. The case of Collinson vs. Wright, 1 Siderf. 148, cited in 2 Fearne, 390, and in 4 Bac. Ab. 251, 294, decided in 1663, is strong in support of our construction. There the devise was to A, the testator's son and heir, and if he died before his age of 21 years, and without issue of his body then living, then remainder over. It was held he took a fee, because the estate tail was limited to commence upon a subsequent contingency. Here the failure of issue was not too remote, as it was to happen upon his leaving none living at his death; but the words "if he die under 21," were not per se sufficient to restrict the words "without issue," within the definite period prescribed by law. The first case upon this subject arose immediately after the birth of executory devises, and the true distinction was there settled by three judges of the King's bench against one [**17]  Clache's case, 3 Dyer, 331, (15 Eliz. 1573.) Devise to daughter A, and her heirs forever, and another devise to daughter B, and her heirs forever; and if A should die having no issue, living B, then her share to B in fee. If B die under 16 and living A, then B's share to go to A in fee. If both die having no issue, the whole to C and D, &c. This was held by three justices to be an estate tail in the daughters--Dyer dissenting. "The opinion of the three judges in this case," says Mr. Cruise, (6 Cruise's Dig. 270,) "has been confirmed by several subsequent determinations." In Collinson vs. Wright, decided about a century afterwards, the decision rested upon Clache's case as good authority. 1 Siderf. 148, (15 Car. II. 1663.) 4 Bac. Ab. 251, 294. 2 Fearne, 390. Devise to one of four sons, and his heirs forever, and if he die within age, or without issue, to his three other sons, equally to be divided. The devisee had a daughter, and died within age--Held by the court unanimously, he took an estate tail that descended to his daughter. Soulle vs. Gerrard, Cro. Eliz. 525, (37 Eliz. 1595.) S. C. Noy, 64. S. C. Moor, 422. This case is of very high authority, and fully in point for the construction [**18]  we contend for. It is cited by Lord Holt, near a century afterwards, as settling this devise to be an estate tail in Hilliard vs. Jennings, 1 Ld. Raym. 505, and in Price vs. Hunt, 1 Pollexfen, 645; by Justice Buller, as good authority, in Wright vs. Kemp, 3 T. R. 474; by Le Blanc, J. in Denn vs. Remeys, 9 East, 376, and by Cruise, in 6 Cruise's Dig. 270. Devise to son John, and his heirs, and if he die without issue, devise over to nephew in fee--Held an estate tail in John, and no fee. Brown vs. Jervas, Cro. Car. 290, (8 Jac. I.) Devise over after a fee, upon the contingency of default of heirs of devisee in life of collateral heirs. Held an estate tail if devisee over a collateral heir of devisor or devisee. Showing an intent to confine the limitation to lineal heirs. Webb vs. Herring, Cro. Jac. 415, (13 Jac. I.) So Tyte vs. Wyllis, Ca. temp. Talb. 1. Nottingham vs. Jennings, Dig. Ch. Rep. 35. Com. Rep. 81. 3 Com. Dig. tit. Devise, (N. 5,) 428, 430. So Morgan vs. Griffiths, Cowp. 234. In Dutton vs. Engram, Cro. Jac. 427, (15 Jac. I,) the devise was to wife for life, then to John and his heirs, on condition he should pay an annual rent thereout; and if John die without heirs of his [**19]  body, the land should remain to Stephen, and the heirs of his body--Held, that John took an estate tail. Devise to A, and his heirs, and the other land to B, and his heirs, and if B dies without issue, living A, to A, and if both die without issue then to D, is an estate tail in A. 1 Roll. Ab. 839, 1. 25. 3 Com. Dig. tit. Devise, (N. 5,) 428. King vs. Rumball, Cro. Jac. 448. 1 Fearne, 369. 6 Cruise's Dig. 284. Devise to three daughters in fee, one to be the others heir--an estate tail. In Chadock vs. Cowley, Cro. Jac. 695, (22 Jac. I.) Pollexf. 487. 4 Bac. Ab. 257, 258. 6 Cruise Dig. 270, the testator devised his lands in B to Thomas his son, and his heirs forever, and his lands in E and L to his son Francis, and his heirs forever. The survivor of them to be heir to the other, if either die without issue, (i. e. if Thomas die without issue, living Francis, or Francis die without issue, living Thomas--then over in fee.) Held an estate tail in each son, and not a fee; and this too immediately after Pells vs. Brown, which held this to be a fee. Cro. Jac. 590. And it was said by the judges in Chadock vs. Cowley, if it had been a devise in fee, and "if he died without issue before such [**20]  an age," then it would have been a contingent devise in tail, if it had happened, but not otherwise--But here an absolute estate tail. In Collinson vs. Wright, the case of Chadock vs. Cowley was relied on by the court, and approved as good authority long afterwards. So devise to son C an annuity, "and if my son C shall die before any issue of his body, so that my land descend to D before he attains 21, then my executors to occupy till D is 21,"--gives an estate tail to C by implication. Newton vs. Bermandine, Moor, 127. 6 Cruise's Dig. 282. Here is a double contingency--dying without issue, and also before D attains 21 years of age. In Hilliard vs. Jennings, 1 Ld. Raym. 505, (11 Wm. III.) 1 P. Wms. 557. Carth. 514--the devise was to A, and his heirs forever, and if he die without issue of his body, or before 21, then to B. The first devisee attained 21, and died without issue, devising away the land by a will with two witnesses only. Lord Holt appears to have considered this a clear estate tail in A; though the case went off upon the statute of frauds. Devise to daughter A all the testator's real and personal estate, to hold to her and her children, or issue forever; and if she should [**21]  die leaving no child, or, if her children should die without issue--Held an estate tail in A. Wood vs. Baron, 1 East, 259. 6 Cruise's Dig. 281. Devise to A, and the heirs of his body, and if he die under 21, and without issue, to B--Held an estate tail in A. Roe vs. Scott & Smart, 2 Fearne, 204, (27 Geo. III.) So that a limitation over is a good remainder. notwithstanding the contingency annexed of dying under 21--Showing that this does not restrain the indefinite failure of issue. If A die without heirs before 21, so that the estate falls to his sister, is an estate tail in A. 3 Com. Dig. 429. 2 Levintz, 162. If A die before he has issue, during the minority of B, was held an estate tail in A, though a double contingency. Moor, 127. 3 Com. Dig. 429. This is a very strong case in favour of our construction. In Kirkpatrick vs. Kirkpatrick, 13 Ves. 475, Lord Eldon held that there might be an indefinite failure of issue, notwithstanding the words of the will were--"If either die under 21, and without issue." But in that case there were words sufficient to tie up the failure of issue within the period prescribed, and as it was personalty, it became absolute at 21. Tenny's Lessee vs. Agar,  [**22]  12 East, 253, (in 1810,) is a strong case for our construction. There, Bayly, J. says, if son had died leaving issue, which issue had died immediately after, it was the testator's meaning that the devise over should not fail absolutely; and yet it must have failed if the contingency depended on the son's dying without issue at the moment of his death. The meaning was, as in most cases it is, that the devise over shall take effect when the son dies and his issue fails, let it fail when it may, whether before, or at, or after the son's death. And this is what we understand by an indefinite failure of issue. Anderson vs. Jackson, 16 Johns. Rep. 412. Devise of real estate to A, and if he die under 21, and without issue, to B, in fee--An estate tail in A. Roosevelt vs. Thurman, 1 Johns. Ch. Rep. 227, 228. Cruger vs. Heyward, 2 Desaus. Eq. Rep. 112. Howell vs. Tilden & Blay, in the court of appeals of Maryland in 1735. Smith vs. Smith, 2 Harr. & Johns. 314 Jackson vs. Billinger, 18 Johns. Rep. 369. As to the case of Barnitz Lessee vs. Casey, 7 Cranch, 462, that was decided on the want of proof of actual ouster, and the case did not turn on the quantity of estate taken by John M'Connel. It [**23]  was immaterial whether he took a fee or an estate tail, as both he and J. B. Hammond died under age, and without issue, and their collateral heirs were heirs of the testatrix. The cases cited by Mr. Justice Story are not authorities for the extra judicial dictum, that John M'Connel, on attaining 21, became vested with a fee simple absolute. He cites Framingham vs. Brand, 1 Wils. 140, decided in 1746, which merely decided that or might be construed and, but it does not appear whether the plaintiff claimed as heir to the devisor, or to the first devisee. Thurstout vs. Denny, 1 Wils. 270.--Here was a marriage settlement, and an appointment by a subsequent will. The question was, whether the power was well executed, and whether the executory devise was too remote? It could not be a good remainder, for it was not created at the same time with the life-estate, nor by the same instrument. Goodman vs. Goodright, 2 Burr. 872, was also a marriage settlement, and there was no question as to the quantity of estate, nor was it decided whether it was an executory devise or a contingent remainder. In the first case, Lord Mansfield held it too remote. In the latter, that it was barred by fine and [**24]  recovery. Cook vs. Gerrard, 1 Saund. 174, is not at all in point, but on another subject. Baker vs. Suretees, 2 Stran. 1175.--"If he die before 21, or marriage, and without issue," then over. The grandson attained 21, and died without having been married. Held, that the plaintiff might recover, claiming under him. It does not appear how he claimed, whether under a fine and recovery suffered by the grandson, or as heir to the first testator, and also heir to the grandson, the first devisee, who was also heir to the testator. And the devisee over could not be entitled, as the contingencies had not both happened upon which alone he was to take. So that Mr. Justice Story's opinion is unsupported by the cases he cites. And as to the case of Hauer vs. Sheetz, 2 Binny, 532, there the opinion of the court proceeds on the ground of a personal charge upon the first devisee, which carries a fee, and rebuts the legal implication of a less estate. And all the other cases in Great Britain, and in the several states, where the words "if he die under 21, and without issue," after a fee, are held to create a good executory devise, are founded upon Pells vs. Brown, which case is impeached in Plunket [**25]  vs. Hornes, 1 Siderfin, 47, and in Anderson vs. Jackson, 16 Johns. Rep. 406, 407, by Chancellor Kent. And the construction was made from subsequent events, and not from the words of the will at the time of the creation of the estate. Such cases are not entitled to as much respect as the old established rules of the common law, however venerable may be the names which have at times appeared to sanction these modern innovations.

Curia adv. vult.  

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

OPINIONBY:
BUCHANAN; DORSEY 

OPINION:

 [*233]  BUCHANAN, Ch. J. at the present term, delivered the opinion of the court. On the 11th of August 1755, Frances Middlemore made her will, the second clause of which is in these words:--"I give and devise unto the aforesaid Richard Dallam and Josias Dallam, and to their heirs and assigns forever, as tenants in common, equally to be divided between them, all that tract of land called Palmer's Forrest, lying on the west side of Swan creek; but if either of them dies before the age of twenty-one years, and without issue, then I will that one equal half part of the said land he held [**26]  and enjoyed by Gouldsmith 

 [*234]  Garretson, (son of George and Martha Garretson,) his heirs and assigns, forever, to whom I give and devise the same accordingly. And in case the said Richard Dallam and Josias Dallam should both die before the age of twenty-one years as aforesaid, and without issue, then I give and devise the whole of Palmer's Forrest to the aforesaid Gouldsmith Garretson, his heirs and assigns forever."
Richard Dallam and Josias Dallam entered upon and took possession of the land so devised to them, and caused it to be divided. Richard married and had two sons, John and William, now living, and died in the year 1820, aged 74 years, after having conveyed his part to his son John. Josias sold all his part, except about 125 acres, the premises in question, of which he died seized in the year 1820, at the age of 72 years, leaving a number of children, now living, of whom Francis J. Dallam, the tenant in possession is one, and William M. Dallam, the lessor of the plaintiff below is another, claiming as eldest son and heir in tail. And the question raised is, what estates did Richard and Josias Dallam [**27]  respectively take under that devise--estates in fee simple, or estates tail?
It would be an unprofitable, and almost endless task, to go through an examination of the multitude of authorities in relation to this subject; a few only of which will therefore be noticed in the exposition that is proposed to be made of the principles governing the decision of this case.
The case of Soulle vs. Gerrard, Cro. Eliz. 525, was much relied upon, in the ingenious argument of the counsel for the appellee, to show that Richard and Josias Dallam took estates tail only. The devise in that case was to Richard, one of the devisor's sons, and his heirs forever; and if he died within the age of twenty-one years, or without issue, that then the land should be equally divided amongst his three other sons; and it was held that Richard took only an estate tail; the whole of the judges being of opinion, that the devise over, so far as it was on his dying within the age of twenty-one years, being after a fee, was void, on the ground that a fee could not be limited by will after a fee. They therefore rejected altogether the contingency of his dying within age, and construed the other contingency [**28]  of his dying without issue, as being explanatory 

 [*235]  of the word heirs, and restricting it to mean heirs of his body; and thus virtually reduced it to the case of a limitation over on the single contingency of his dying without issue.
By the ancient common law no remainder could be limited ever after an estate in fee simple, nor a freehold be created to commence in futuro. But that strictness has been greatly relaxed in favour of dispositions of estates by will, and the settled rule now is, as it has been for ages, that by way of executory devise, a fee simple, or other less estate, may be limited after a fee simple; and the familiar example put in the books, is of a devise to one and his heirs, and if he dies before the age of twenty-one, then over to another and his heirs. In Soulle and Gerrard the court went expressly upon the assumption, that that could not be; no distinction was attempted to be taken between a definite and indefinite failure of issue, nor was there the slightest intimation, that the first contingency, of the devisee Richard dying within the age of twenty-one, could not have the effect to restrict the subsequent words "without issue," to mean [**29]  a failure of issue at the time of his death. But the judges, considering the contingency of his dying within twenty-one, as standing in the way of the subsequent words, "without issue," and (if suffered to remain,) preventing their explaining the word "heirs" to mean heirs of his body, and thus to constitute the devise to Richard an estate in fee simple, they rejected the contingency of his dying within twenty-one, and construed the will as if it did not contain that provision, but only a limitation over on the simple contingency of his dying without issue. That case, therefore, cannot at this day be relied upon as authority, to show either that there cannot be a good limitation by will after a fee simple by way of executory devise, or that, in the case of a limitation over, on the double contingency of a dying before the age of twenty-one, and also without issue, the contingency "of dying before the age of twenty-one" does not restrict the words "without issue" to mean a definite failure of issue; that is, a failure of issue at the death of the first devisee. On the contrary, it would rather seem, that but for the principle assumed and acted upon by the judges, that there could [**30]  not be a limitation by will after a fee simple, they would have considered the first contingency of 

 [*236]  "dying within the age of twenty-one years," as limiting the second "without issue" to mean a failure of issue at the death of the first devisee; otherwise they would not have felt themselves constrained to reject the first contingency, in order to let in the words "without issue," to explain the sense in which the words "and his heirs forever" were used in the devise to Richard; as it was only on the ground that the contingency of his dying within the age of twenty-one would have the effect to restrain the other contingency "of his dying without issue," to a failure of issue at the time of his death, that he could have been held to take an estate in fee simple.
An executory devise, unlike a remainder, needs no particular estate to support it; but no limitation can be good as an executory devise, unless it be on a contingency, that must happen, if at all, within a life or lives in being, and twenty-one and a fraction of a year afterwards. And if it be limited in an event, which may not happen within the prescribed limits, as upon an indefinite failure of issue, it [**31]  is void; for the possibility at its creation, that the event, on which it is made to depend, may not take place within the time allowed, vitiates it from the beginning, no matter how the fact turns out afterwards. Nor can any limitation be construed to operate as an executory devise, where consistently with the rules of law, and the intention of the testator, (which when not contrary to law must always prevail,) it may take effect as a remainder.
It is established by the authority of more than fifty adjudged cases, that wherever there is a devise of real estate to one and his heirs, with a limitation over if he should die without issue; the words "without issue," mean an indefinite failure of issue, that is, not a failure of issue at the time of the death of the devisee, but a failure whenever they shall become extinct, without reference to any particular time or event; if there be nothing in the will showing a different intention on the part of the testator, and restricting the failure to the time of the devisee's death, or to some other time or event.
In every such case, the contingency is too remote to support an executory demise, as the event on which it is made to depend, (the [**32]  failure of issue,) may not happen within the prescribed limits, a life or lives in being, and 21 years and a fraction 

 [*237]  of the year afterwards, allowing for the time of gestation. But it is construed to be an estate tail in the first devisee, and the limitation over operates as a contingent remainder, expectant upon the precedent particular estate tail.
But wherever there are expressions in the will restricting the "dying without issue" to a failure of issue, at the time of the death of the first devisee, or to some other time or event which must occur, if at all, within the time allowed for the happening of a contingency, in which an executory devise may be limited, there the first devisee takes an estate in fee simple, and the limitation over is void as a remainder, but good by way of executory devise--as if the words be "without issue living at the time of his death," or "without issue living at a time specified." These are rules, for the construction of wills, so well settled, and so long acted upon, as to have become maxims of the law that are not now to be questioned.
Whether the intention of the testator is always arrived at and gratified by these rules of construction,  [**33]  is not now a question open for examination. In construing a will, the particular words of which have received a settled technical construction, that has become a rule of property, that construction ought to be adhered to and preserved as a fixed and established land mark.
With these principles kept in view, it remains to be examined, by which of those rules the devise before us is to be governed; whether the words "without issue" mean an indefinite failure of issue, or whether they are restricted to mean a failure of issue at the time of the death of Richard and Josias Dallam respectively.
In Pells vs. Brown, Cro. Jac. 590, the devise was of lands by William Brown, to his son Thomas, and his heirs forever, and if Thomas died without issue, leaving William his brother, that then William should have those lands to him, and his heirs and assigns forever. And it was adjudged that Thomas took an estate in fee simple, and that the limitation over to William was good as an executory devise; on the ground that the words "without issue," as there used, did not mean an indefinite failure of issue, but were explained and restricted by the words "living [**34]  William," to mean a dying by Thomas without issue living, in the lifetime of William; and were not 

 [*238]  used to qualify the word "heirs" in the devise to Thomas, and to show that it was the intention of the testator, to restrain them to heirs of his body, but only to designate an event, on the happening of which the estate in fee simple before devised to him was to determine or be defeated, and the contingent limitation to William to take effect--which it was held could only be by way of executory devise, and not as a remainder, which could not be limited after a fee simple.
That is a leading case upon the subject, and is put as an example of a good executory devise, in 2 Fearne Cont. Rem. 17, 52. 4 Cruise on Real Property (Am. Ed.) 441. Purefoy vs. Rogers, 3 Wms. Saund. 388, (note 9.) 3 Com. Dig. 431, and referred to in Porter vs. Bradly, 3 Term. R. 146; and Roe vs. Jeffery, 7 Term. R. 592--as the "foundation of this branch of the law;" and that case cannot in principle be distinguished from this. There, the contingency on which the limitation over was to take effect, to wit, a dying without [**35]  issue in the lifetime of another, was to happen within a life in being; here, within 21 years. And there is no want of adjudged cases, down to the present time, to show in what manner devises such as this have been uniformly construed.
In Brownsward vs. Edwards, 2 Ves. 243, where the devise was to one in tail, but if he died before 21, and without issue, then over to another, Lord Hardwicke held, that the limitation over was good by way of remainder, because an estate tail was capable of supporting a remainder; but that, if the first devise had been to the devisee and his heirs, that construction could not have been made; for where there was such a contingent limitation, the court had not changed "heirs" unto "heirs of the body." In Walsh vs. Patterson, 3 Atk. 193, the devise was by a father to his son, and his heirs and assigns forever, but in case he died before he attained the age of 21, or without issue, then to the testator's wife, and her heirs. Lord Hardwicke said, "he thought it a very plain case; and that if the testator had gone no farther than the first clause, he would have given the son an absolute fee, but then followed the executory [**36]  part;" but he held it to be a vested estate in fee in the son, and as he arrived at the age of 21, though he died without issue, yet that it did not go over to the mother, but descended to his heirs at 

 [*239]  law. Thus clearly showing, that the words "without issue" were not considered, in such cases, as explanatory of the sense in which the word "heirs" was used in the preceding clause, and as narrowing it down to mean heirs of the body; otherwise the son in that case must have been held to take an estate tail, with a contingent remainder in fee to the mother; but as a mere contingency, restricted to the dying by the first devisee, under the age of 21, and without issue living at the time of his death; by the happening of which the preceding estate in fee was to be defeated, and the limitation over to take effect by way of executory devise. And in Framlingham vs. Brand, 1 Wils. 140, reported also in 3 Atk. 390, where the devise was by a woman to her son Robert, his heirs and assigns forever, and if he should happen to die in his minority, or unmarried, or without issue, then over to her son Harry and his heirs, Lord Hardwicke said he was clearly [**37]  of opinion, that it was a fee in Robert, with an executory devise, and agreeable to all the cases. Barker vs. Suretees, 2 Strange 1175, is a similar case.
In Hauer vs. Sheetz, 2 Binn. 532, the devise was to F. his heirs and assigns forever, (subject to a pecuniary charge,) and if he should die under the age of 21, or without issue, then over to P; and it was held, that F took a fee with an executory devise to P, to take effect upon F's dying under age, and without issue.
It will be seen that in all these cases the disjunctive or (or without issue,) is used, and that the only doubt entertained in either of them was, whether that disjunctive could be read (and;) but it was adjudged in each case, that it should, in order to effectuate the intention of the testator; which is, according to the known rule of construction in such cases, established by a course of decisions for centuries down to the present time. Small vs. Denny, 1 Wils. 270. Machin & Vessey vs. Reynolds, 7 Serg. & Low. 373; and Barnitz vs. Casey, 7 Cranch 456, are free from any difficulty attending the word (or,) the limitation over in each case being on [**38]  the contingency of a dying under the age of 21, and without issue, dropping the word (or) and using the conjunctive (and,) which is precisely this case.
In the whole of these cases the words "without issue," were considered as not having the effect to reduce the preceding estate in fee simple to an estate tail, but the dying without 

 [*240]  issue was held to be a mere contingency, on the happening of which, it was the intention of the testator that the fee simple before created should determine. The limitation over, could not, therefore, take effect as a remainder, which cannot be limited after a fee. And it could not have been construed to be good, by way of executory devise, except on the ground, that the words "without issue" did not mean an indefinite failure of issue, which would have been too remote to sustain an executory devise, as the contingency in such case might not happen within the prescribed limits; but that, connected with the preceding words dying within age, or before 21, &c. they were restricted to mean a failure of issue at the time of the death of the first devisee; on the principle of the case of Pells vs. Brown, and of Wilkins vs. Kemeys, 9 East [**39]  366, where the devise was to B, and her heirs, but if she died before A, or without heirs of her body, then to C; and it was held that the devise over to C, could only take effect, if B died before A and without issue. And it does seem that a limitation over, on a dying within age, or under 21, and without issue, must necessarily mean a dying without issue living at the time of the death of the devisee, and being a contingency that must happen, if at all, within the time allowed, it is a good contingency in law to support an executory devise. The plain meaning of such a clause is, that if the party dies before 21, eo instanti the fee before given to him shall determine, and the estate pass over to another, provided there be no issue at the time of his death--the dying before 21 and also childless, making together the event on which one estate is to cease, and the other begin--and both must occur, to give life and effect to the limitation over; so that if the first devisee either attains the age of 21, or dying before 21 leaves issue, the fee, before defeasible, thereby becomes absolute, and the limitation over defeated. And it is not like the case of a limitation over on a dying [**40]  "without issue" generally, which, however a plain man might understand it, is now, when applied to real estate, technically construed to mean an indefinite failure of issue, though the same rule does not extend to dispositions of personal property.
Upon the whole, we think, both on authority and principle, that the words "without issue" in this case, cannot be so construed 

 [*241]  as to turn the fee simple before devised into an estate tail, without violating the clear intention of the testatrix; and that Richard Dallam and Josias Dallam each took an estate in fee in the premises respectively devised to them, defeasible by the event of his dying before he attained the age of 21, and without issue, but which became absolute on his arrival at the age of 21. And being a fee in its creation, the limitation over was void as a remainder, though it would have been good by way of executory devise, if the contingency had happened on which it was made to depend; but that not having happened, the executory limitation over can never take effect. William M. Dallam then, has no title to the land in question as heir in tail; but his father Josias, being seized of an absolute [**41]  estate in fee simple, it would, under the act of 1786, ch. 45, the act to direct descents, have descended to his heirs in fee, that is, to all his children equally, if he had died intestate; and William M. Dallam would have been entitled to an equal share with the other children in fee simple, and no more.
DORSEY, J. Although much time was consumed in the argument of this case, it presented for decision but one question, on which, it is difficult to conceive, how a doubt could remain on the mind of the learned counsel who had made that full and elaborate examination of the authorities on the subject, so conspicuously displayed before this court. The material facts in the case are simply these--Frances Middlemore, of Baltimore county, in 1755, made her last will and testament, in which are the following clauses: "Imprimis. I give and devise unto Josias Dallam, (son of William and Elizabeth Dallam,) and to the heirs of his body, all those tracts of land called Fanny's Inheritance and the Union, lying on the north side of Swan creek, near the Cranberry; and in default or want of such issue, to his brother Richard Dallam, and to the [**42]  heirs of his body; and in default of such issue to George Gouldsmith Presbury, (son of George Presbury,) his heirs and assigns forever. 2dly. I give and devise unto the aforesaid Richard Dallam and Josias Dallam, and their heirs and assigns forever, as tenants in common, equally to be divided between them, all that tract of land called Palmer's Forrest, lying on the west side of Swan creek, but if either of them dies before 

 [*242]  the age of twenty-one years, and without issue, then I will that one equal half part of said land be held and enjoyed by Gouldsmith Garrettson, (son of George and Martha Garrettson,) his heirs and assigns, forever; to whom I give and devise the same accordingly. And in case the said Richard Dallam and Josias Dallam should both die before the age of twenty-one years, and without issue, then I give and devise the whole of Palmer's Forrest to the aforesaid Gouldsmith Garrettson, his heirs and assigns, forever. 3dly. I give and devise unto the aforesaid Gouldsmith Garrettson, and to his heirs and assigns forever, all that tract of land called The Grove, lying near the head of Musquito creek. [**43]  4thly. I give and devise unto Susanna Hall, daughter of John and Susanna Hall, and to her heirs and assigns forever, all that tract of land called Invention, lying on the west side of Spesurtree creek. 5thly. I give and devise to Henrietta Holland, daughter of Francis and Susanna Holland, and to her heirs and assigns forever, all that tract of land called Middlemore's Angle, lying on the branches of Swan creek. 17thly. I devise the residue of my real estate unto the aforesaid Richard Dallam and Josias Dallam, their heirs and assigns, as tenants in common, equally to be divided between them." These are the only devises of real property contained in the will. Richard and Josias Dallam both arrived at the age of twenty-one years, divided Palmer's Forrest between them; and Josias Dallam died in 1820, seized under the devise aforesaid of part of Palmer's Forrest, and leaving eleven children, of whom the appellee's lessor is the oldest son, and the appellant another of his sons and one of his executors, who were directed by his will to sell the premises in question.
Did Josias Dallam, by the second clause in Frances  [**44]   Middlemore's will, take in a moiety of Palmer's Forrest an estate in fee tail? is the only point to be considered. If yea, then is the appellee entitled to recover, and not otherwise. No lawyer can read this will and hesitate in admitting that it was drawn with great perspicuity and professional skill, and that its writer well understood the established and legal import of the terms and expressions which it contains. In arriving at its true exposition, the court must look to the intention of the 

 [*243]  testatrix, which they are bound to effectuate, if not inconsistent with the rules of law. Whence is this intention to be collected? Not from mere conjecture, but from the clauses and expressions contained in the will itself. These are to have their plain and popular interpretation. And if formal or technical terms are used, they are to be construed according to their legal import, if such construction contravene not the intention of the testatrix. The devisor having used the words "heirs," "heirs of the body," and "issue," we are bound to say she understood the meaning of each expression, nor can we substitute the one for the other, but to gratify her manifest intention; or,  [**45]  as is emphatically said by Justice Buller in Doe vs. Perryn, 2 Term. R. 49, "unless by unavoidable and necessary construction to make sense of the will."
The second clause of the will, prior to the limitation over, gives to Richard and Josias Dallam an estate in fee simple as absolute as language could make it; being to them, "their heirs and assigns forever." The devise over was intended to take effect upon the happening of two contingencies, and not otherwise; to provide for the annihilation of the estate created in the first devisees, not to change its nature. This interpretation gives to every word of the will its natural as well as legal signification and operation, and accords with the intention of the testatrix, manifestly deducible from other parts of her testament.
By the first clause she devises to Josias Dallam, and "to the heirs of his body," with a limitation over, in default of issue, to Richard Dallam and to "the heirs of his body," remainder to George Gouldsmith Presbury his heirs and assigns forever. Thus showing, that when an estate tail was designed to be created, "heirs of the body" were inserted; when a fee simple, "heirs [**46]  and assigns for ever." What conceivable reason then can be assigned, if an estate tail only were contemplated in the second clause, that the appropriate phraseology, used in the first (the devisee's too in both instances being the same persons,) should be wholly abandoned, and a substitute introduced, which conveyed an entirely different estate from that intended to be given. Again, in the 3d, 4th, 5th, and 17th sections of the will, where the testatrix evidently designed to pass 

 [*244]  a fee simple estate, she uses identically the same formal words, "heirs and assigns forever," that appear in the second section in the devise to Josias and Richard Dallam. Why then should their import, in the latter case, be narrowed down to an estate tail? In obedience, say the counsel for the appellee, to two universal and inflexible rules of law--First, "that where-ever a devise is made to one, and his heirs, or heirs and assigns, with a limitation over after failure of issue of the first devisee, such limitation over reduces the fee simple, originally given, to an estate tail." The second, "that no limitation over shall operate as an executory devise, if it can be made to take effect [**47]  by way of remainder." Before we admit the conclusions which have been drawn from these rules, by him to whose aid they have been invoked, let us inquire whether there be such rules; and if so, how far the legitimate exposition thereof be applicable to the case now at bar. The existence of the first, as an universal rule of law, cannot be admitted. It is special, and not universal; applicable only to cases where the limitation over is after an indefinite failure of issue. No case of authority has been referred to in the argument, and it is believed that none such can be found, where a devise in terms importing a fee, with a limitation over after a definite failure of issue of the first devisee, has been held to invest him with an estate tail only. Upon what principle is it, that after a devise in fee a limitation over, after a general failure of issue of the first devisee, reduces the estate given to an estate tail? It is said in the books, that by the use of the word issue, and the limitation over, the testator explains what is meant by the word "heirs," showing that he intended heirs of the body only. But how this explanation is made manifest, I have no where seen distinctly elucidated [**48]  in the authorities. Yet, upon a moment's reflection, it is most obvious to the mind of every lawyer. By the limitation over, after an entire failure of issue, the testator most unequivocally declares, that no heir of the devisee shall inherit, who is not his issue. Thus conclusively demonstrating, that by the word "heirs," in the commencement of the devise, he meant heirs of the body. But does the same reason apply to a devise in fee, with a limitation over after a definite failure of issue? Can, in such a case, no person inherit as heir of the devisee, 

 [*245]  who is not also an heir of his body? Most assuredly he may. Should the issue be not extinct, at the period fixed by the terms of the devise, then the limitation over can never take effect. And if, subsequently to that period, a failure of issue should occur, the heirs collateral of the devisee may inherit the estate devised. The principle then which converts a devise in fee with a limitation over after an indefinite failure of issue, into an estate tail, has no application to a devise in fee with a limitation over after a definite failure of issue. In the last mentioned class of cases a fee simple always passes to the devisee, [**49]  liable to be defeated by the happening of the contingency upon which the limitation over is made to depend, provided the contingency be such that, by the rules of law, a fee upon a fee, by way of executory devise, may be limited upon it. But if the contingency be too remote, then is the limitation over null and void, and the estate becomes an absolute fee simple in its first inception. It is true that a dictum is met with in Soulle vs. Gerrard, Cro. Eliz. 525, which at first view might be considered in the teeth of this doctrine; and on this case the counsel of the appellee appeared to rest with the most confident reliance. The only question which should there have been decided, was simply whether "or" should be construed "and," to effectuate the testator's intention; and the facts which presented that point for adjudication were the following: The testator, having four sons, devised the land in dispute to one of them, and his heirs forever; and if he die within the age of one and twenty years, or without issue, that then the land should be equally divided amongst his three other sons. The first devisee had issue, and died under twenty-one years. The parties litigant were the [**50]  issue of the son of the devisee, and the three surviving sons of the testator. Two points were argued by the counsel--first, that the disjunctive "or" should be taken for the copulative "and;" the second, that the remainder, (as it was improperly denominated,) being limited to depend upon a fee, was therefore void. Anderson, Chief Justice, in delivering his opinion, (which was adopted by the rest of the court,) states, "that this part of the limitation, if he die within age," is utterly void, for a remainder cannot depend upon a fee, and then it is all one as if the limitation had been single, "if he die without issue;" 

 [*246]  so that the first devisee had an estate tail. The court there arrive at this notion, that the first devise is of but an estate tail, by error so manifest, that it is matter of surprise that such a decision should be seriously pressed upon a court of justice at the present day. Their whole opinion is bottomed upon a denial of what is now deemed one of the best established axioms of the law, "that by last will and testament a fee may be limited upon a fee." To bolster up this unsound adjudication, it has been alleged, that it was approved of by Lord  [**51]  Holt in Hilliard vs. Jennings, 1 Ld. Raym. 505; and by Buller, Justice, in Wright vs. Kemp, 3 Term. R. 474. The insinuation, that so distinguished a judge as Lord Holt had sanctioned an error so egregious, is of itself enough to excite our suspicion of inaccuracy in the reporter; but this suspicion is converted into demonstration, when we look to the same case of Hilliard vs. Jennings, in 12 Mod. 276, and in Com. Rep. 94, where Lord Holt, so far from approving, denied the authority of Soulle and Gerrard. So far only, I presume, as related to the dictum about the estate tail. The opinion of the court, however, in Soulle and Gerrard, if entitled to any weight, rather supports than impugns the distinction now assumed, as to the operation of limitations over after definite and indefinite failures of issue. Before they there felt themselves authorized to reduce the estate devised to a fee tail, they were first constrained to reject, as null and void, all that part of the limitation over, which made the estate dependent on a definite failure of issue. The sole question in Wright vs. Kemp was, whether "or"  [**52]  should be construed "and;" and after Lord Kenyon, in support of that construction, had cited a number of authorities, Buller, J. observed, that in addition to the cases mentioned by his Lordship, there is another to the same effect in Moor, 422, where the words are, "if he die without issue or before twenty-one, then over." He adduced this authority as one where "or" was held to mean "and," having no allusion to the question whether the estate devised were in tail or in fee; and that by this reference he had no such design as is imputed to him by the counsel of the appellee, is most evident on turning to the case as reported in Moor, which is in less than five lines, and simply states, that in a devise to his "son, and if he 

 [*247]  die without issue or before his age of twenty-one years, then remainder to another; the son had issue, but died under twenty-one years, adjudged that the issue took the land, and not the remainderman." Not one word is here to be found about an estate tail; and Buller, J. did as every lawyer of modern times would do, views this as a case in which nothing was determined save that "or" meant "and." But the fact is, as was observed [**53]  by Lord Hardwicke in Framlingham vs. Brand, 3 Atk. 390, "the doctrine of executory devises was not well settled when Soulle vs. Gerrard was decided."
An indefinite failure of issue, is where the limitation over is to take effect whenever the issue becomes extinct. A definite failure of issue, is where the limitation over is only to take effect upon the issue's becoming extinct within some specified period. Has the testatrix in the case at bar tied up the failure of issue of the first devisee to any particular time, and is the time prescribed such as by the rules of law will permit a fee to be limited upon a fee? are the questions before us. And these questions have been so frequently decided in cases in totidem verbis, or even stronger against the appellee, that it is only necessary to refer to them to silence forever all doubt on the subject. In Hanbury vs. Cocherill, 1 Roll. Abr. 834, the testator devised lands to his son B in fee, and other lands to his son C in fee, subject to a proviso, that if either of his sons should die before they should be married, or before they should attain the age of twenty-one years, and without issue of their bodies,  [**54]  then he gave all the lands, which he had given to such of his sons that should so die, &c. unto such of his sons as should the other survive. It was held that the sons took in fee, subject to a limitation to the survivor for life, in case of either dying unmarried, or under twenty-one years of age, and without issue. In Barker vs. Suretees, 2 Strange 1175, the devisor gave the premises in question to his grandson, his heirs and assigns; but in case he dies before he attains the age of twenty-one years, or marriage, and without issue, then over--Held, that the first devisee took the estate in fee, subject to the executory devise over on the contingencies mentioned. In Walsh vs. Peterson, 3 Atk. 193, the testator gave two thirds of his real estate to his son, to hold to him, his heirs 

 [*248]  and assigns forever; but in case he shall happen to die before he attain the age of twenty-one years, or without issue, then to the testator's wife, her heirs and assigns. Lord Hardwicke held it to be a vested estate in fee in the son. In Framlingham vs. Brand, 3 Atk. 390, the testatrix devised her house to her son Robert, and his heirs [**55]  and assigns forever; and in case he shall happen to die in his minority, and unmarried, or without issue, she gave it to her son Harry, and his heirs. Lord Hardwicke, in delivering his opinion, says, "the question is, if this was a devise of an estate tail in Robert, with remainder over to Harry, or if a fee with an executory devise to Harry on these contingencies, I am clearly of opinion this is a fee with an executory devise, and agreeable to all the cases." And he further determined, that Robert having arrived to the age of twenty-one and died, the house was answerable for his debts. So in Thrustout vs. Denny and others, 1 Wils. 270, the feme by will appoints the premises in question to her son, and his heirs forever; but in case her said son should die before his age of twenty-one years, and without issue, then she devised the land over in fee. The court held this remainder over a good executory devise, assigning as their reason, "as it depended on a contingency to arise within the compass of a life then in being." Between the words of the devise in this will, and of those in the will of Frances Middlemore, not the slightest shade of difference [**56]  is discoverable. In Buckworth vs. Thirkell, 4 Cruise's Dig. 451, tit. Devise, 38, ch. 17, s. 27, a devise to a grand-daughter, her heirs and assigns forever; and if she die under twenty-one years, and without issue, then to a grand-son, and his heirs--Held, by Lord Mansfield, a devise in fee in the first taker. In Gulliver vs. Wickett, 1 Wils. 105, the testator devised lands to his wife for life, and after her death to such child as she was then supposed to be ensient with, and to the heirs of such child forever; provided that if such child, as shall happen to be born, shall die before the age of twenty-one years, leaving no issue of its body, then over. The court say, we are all of opinion "that the true construction of this will is, that there is a good devise to the wife for life, with remainder to the child in contingency 

 [*249]  in fee, with a devise over, which we hold a good executory devise, as it is to commence within twenty-one years after a life in being." In Barnitz Lessee vs. Casey, 7 Cranch 456, the same question, (the words being identically the same as those now under consideration,) was argued in the supreme [**57]  court of the United States by some of the most eminent counsel in the Union, and it was decided that the first devisee took an estate in fee, and that the limitation over was good as an executory devise. Many similar adjudications, made in the different states, might be cited, but it is deemed unnecessary to do so.
In neither of the cases referred to is it explicitly stated by the court that the "dying without issue" meant issue living at the time of the death of the first devisee. Yet in all those cases such must necessarily have been their decision, or they could not have pronounced the limitations over good by way of executory devise. There is no other period, to which the failure of issue intended by the devisor can be confined. If it be not thus restricted, then upon the death of the first devisee under age with issue, such issue might be successively continued for fifty generations or ten centuries, and then becoming extinct, both contingencies would have happened upon which the limitation over was to take effect. Thus creating such a perpetuity as the law abhors, and will never permit.
As to the second inflexible rule of law, so earnestly pressed into the appellee's service,  [**58]  it is difficult to conjecture what application can be made of it for his benefit. If the court should be of opinion, that the intention of the testatrix is apparent, and sufficiently expressed on the face of the will, to vest in Josias Dallam an estate in fee, with a limitation over by way of executory devise, according to the rules prescribed by law for that purpose, then the maxim of law relied on, "that a limitation over shall never be construed an executory devise, if it can be made to operate by way of remainder," can have no operation; as after a fee, nothing remains to be given. It is the duty of the court in all cases, first to elicit the intention of the testator from the will itself, as to the extent of the interest intended to be conferred on each devisee. This being done, then to devises of the character of that before us, this rule of law is to 

 [*250]  be applied; and if the limitations over can, consistently with the testator's intent, take effect by way of remainder, they can never operate as executory devises. "But (in the language of Fearne 205,) this rule or principle, or maxim of construction, that a limitation shall never operate as an executory devise, [**59]  where it may take effect as a remainder, may be overruled, where the intent of the testator, or author of the trust or limitation, plainly appears to contradict the legal construction of the limitation; for the intent of the testator shall always prevail, if not contrary to law; which means, if the limitation be such as the law allows; but does not mean that the words shall be taken in such sense as the law imposes upon them."
It has been urged upon the court that the opinion of Chancellor Kent, in Roosevelt and others vs. Thurman, 1 Johns. Ch. 220, is in point in favour of the appellee. If this were so, I should ponder well before I disregarded so high authority. But Chancellor Kent has made no such decision as has been imputed to him; the counsel, it is presumed, has been led into this error, in part, by a palpable mistake committed by the reporter, in giving the marginal contents of the decree; in which he states "it was held, by the words "dying without issue," the devisee took an estate tail by the English law, or an estate in fee under our statute;" whereas the decision of the Chancellor was, that he took either "an estate in fee, or an estate in [**60]  tail, under the English law," which estate tail, by the statute of New York, is made an estate in fee. He gives no express opinion upon the point now in controversy, as it did not arise in that case; but as far as his views can be collected from what he did say, they are in perfect harmony with the adjudications referred to in support of the appellant's pretensions.
Too much time has already been consumed in reviewing authorities in which there is scarcely to be found a shade of discrepancy. The true construction of the second clause of Frances Middlemore's will, (as far as relates to this controversy,) is, that Josias Dallam took an estate in fee in a moiety of Palmer's Forest, subject to an executory devise over, to take effect in the event of his dying under the age of twenty-one years, and without issue living at the time of his death. I think, therefore, that the judgment of the county court should be reversed, with costs.
JUDGMENT REVERSED.