1 of 23 DOCUMENTS 

J. & P. TURNER vs. JENKINS, et al.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

1 H. & G. 161; 1827 Md. LEXIS 9 

June, 1827, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Saint-Mary's County Court. This was an action of assumpsit, brought by the appellees, (the plaintiffs below,) against the appellants, (the defendants below.) The declaration contained two counts. 1st. An indebitatus assumpsit count, under the act of assembly of this state, for sundry matters and articles properly chargeable in account, to the value of $ 200, "as per account filed," &c. 2d. A special count, which charged for the carriage and transportation of "divers hogsheads of tobacco," belonging to the defendants, in the vessels of the plaintiff, from Port Tobacco in Charles county, to the city of Baltimore," at the request of the defendants; and that the defendants being thereof indebted, in consideration thereof promised to pay "the last aforesaid sum of money" on request. Nevertheless, &c. The defendants pleaded non assumpsit, on which issue was joined. No account was filed in the cause.

1. At the trial it was admitted that the defendants were partners in trade. The plaintiffs then produced and swore Robert Tench, a competent witness, who stated that in the year 1819, about the month of May or June, when the tobacco mentioned in the declaration was carried from [**2]  Port-Tobacco to Baltimore, the plaintiffs were joint owners of the schooner Consort, the vessel that carried the tobacco. To which testimony the defendants by their counsel objected. But the Court, [Key, and Plater, A. J.] were of opinion that the same was legal testimony, and suffered it to go to the jury. The defendants excepted.

2. The plaintiff further proved by the said witness, that he heard Josiah Turner, one of the defendants, say that the plaintiffs carried from Port-Tobacco, to Baltimore, the tobacco he purchased from Samuel Chapman, in said vessel, in the year aforesaid; and that Chapman sold to the defendants forty-two hogsheads of tobacco. The plaintiffs then produced and had sworn Hugh Cox, a competent witness, who stated, that in the year 1819, the freight for a hogshead of tobacco from Port-Tobacco, to Baltimore, was two dollars. The said witness further proved, that there were four additional hogsheads of tobacco shipped in the said vessel to be carried to Baltimore, from Port-Tobacco, for and on account of the defendants, at the same time. The defendants then offered to prove by Tench, that he heard Lewis A. Jenkins, one of the plaintiffs, say that the tobacco [**3]  was damaged on board of said vessel in the transportation from Port-Tobacco, to Baltimore. And further offered to prove, by said witness, that at the time one of the defendants, to wit, Josiah Turner, told him that the tobacco he purchased of Samuel Chapman, was shipped to Baltimore, by the plaintiffs, in said vessel, the said Josiah Turner, then said that the said tobacco was damaged; but does not recollect that he said it was damaged to any particular amount, or that it was damaged to the amount of the freight. To the admissibility of which testimony the plaintiffs objected; and the court were of opinion that the same was not admissible, and refused to permit it to go to the jury. The defendants excepted.

3. The defendants then prayed the court to instruct the jury, that under the pleadings in the cause, the plaintiffs were not entitled to recover. But the court refused to give the instruction. The defendants excepted; and the whole of the preceding was included in one bill of exceptions. The verdict and judgment being against the defendants, they appealed to this court.  

DISPOSITION:
REVERSED.  

HEADNOTES:

If one party gives in evidence a part of a conversation between the other party and a witness, it is competent for such other party to extract from the witness the whole of that conversation.

A declaration which contains a count for matters and articles properly chargeable in account, as appears by a particular account filed, no account being filed; and another count for special services, which did not state an assumption of any particular sum, will not authorise a recovery.

Where the pleadings were in that state, and the evidence contained in the bill of exceptions showed the plaintiff had some claim, and the verdict and judgment being for him, the appellate court, on reversing the judgment, awarded a procedendo.  

COUNSEL:
Magruder, for the Appellants, and by

C. Dorsey, for the Appellees.  

JUDGES:
The cause was [**4]  argued before BUCHANAN, Ch. J. and EARLE, MARTIN, STEPHEN, ARCHER, and DORSEY, J.  

OPINIONBY:
EARLE 

OPINION:

 [*163]  EARLE, J. delivered the opinion of the court. The action in this case was brought to recover freight on forty six hogsheads of tobacco, transported by Jenkins and others, the plaintiffs below, for the defendants, from Port Tobacco, in Charles county, to the city of Baltimore. The declaration contains two counts. One count for certain articles properly chargeable in account, as appears by a particular account exhibited; whereas no account whatever appears in the record. The other count is an indebitatus assumpsit for freight on tobacco transported from Port Tobacco, in Charles county, to the city of Baltimore; but it alleges no sum in which the defendants were indebted to the plaintiffs for this service rendered, neither does it state the assumption by them to pay any sum in particular for the same. To this declaration the defendants pleaded non assumpsit; and on the trial they tendered a bill of exceptions, which was signed by the court. In this bill of exceptions the court below express several opinions, in one of which we concur with them,  [**5]  and in the others we think they were clearly wrong.
The statement of the witness, Tench, that the plaintiffs were the joint owners of the schooner Consort, when she carried the tobacco to Baltimore, was admissible proof, although not very satisfactory testimony, without some explanation of his knowledge of the plaintiffs' ownership, if it was a point desirable to be established on the trial of such an issue. The same witness ought to have been suffered to relate what he had heard one of the plaintiffs, Jenkins, say concerning the damage of the tobacco in its passage to Baltimore, as well as the whole conversation he held with Josiah Turner, one of the defendants, on the same subject, whose admission, relative to the quantity of the tobacco, had been made use of by the plaintiffs:

 [*164]  We are also of opinion, that the court erred in refusing to give the last instruction prayed for by the defendants.
The pleadings in the cause, on behalf of the plaintiffs, are not in a state to authorise a recovery, however just their demand may be. We reverse the judgment of Saint Mary's county court, and return them the cause on a procedendo.
JUDGMENT REVERSED,  [**6]  &c.  

2 of 23 DOCUMENTS 

SANDERSON'S Ex'rs. vs. MARKS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

1 H. & G. 252; 1827 Md. LEXIS 17 

June, 1827, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Saint-Mary's County Court. This was an action of replevin for sundry goods and chattels, and a negro boy named Jack. The replevin bond was executed on the 23d of October 1821, by Gerard N. Causin, and others, to the defendant, (now appellee,) for prosecuting the writ of replevin in the name of the plaintiffs' testator. The defendant pleaded, 1. Property in himself, and 2. Property in one Sophia Marks. Issues were joined on the general replications to those pleas. The death of Sanderson was suggested, and the plaintiffs appeared as his executors, exhibiting letters testamentary to them granted, &c.

1. At the trial the plaintiffs offered to read in evidence a bill of sale from John Stevenson, sheriff of Baltimore county, to Michael Sanderson, (the plaintiffs' testator,) executed on the 12th of October 1819, for sundry goods and chattels, and a negro boy named Jack, stated to have been seized by Stevenson as the property of William Marks, under an execution issued at the suit of William Riley against the lands, &c. of Marks, and by Stevenson sold at public auction to Sanderson for $ 512. The bill of sale appeared to have been acknowledged by Stevenson before a justice [**2]  of the peace for Baltimore county, and recorded the same day among the records of that county. To the admissibility of which the defendant objected; and the Court, [Key, and Plater, A. J.] were of opinion that it was inadmissible, and refused to permit it to be read in evidence to the jury. To which opinion of the court the plaintiffs excepted.

2. The plaintiffs then read in evidence the following deposition, (admitted to be read so far as the same was competent testimony,) viz. "G. N. Causin, attorney for the plaintiffs, makes oath, that he believes the plaintiffs cannot proceed to the trial of the said cause with justice to themselves, at this term; that John Stevenson of Baltimore county, is a competent witness in said cause, and he has reasonable expectation that his attendance can be procured by the next term; that he believes the said witness will prove the plaintiffs' testator to have maintained through life a fair and upright character; that at times he, (the plaintiffs' testator,) was in the habit of vaunting of his benevolent actions; and that the boy Jack, mentioned in the declaration, is the same boy mentioned in the bill of sale filed in the cause from John Stevenson,  [**3]  sheriff of Baltimore county, to the plaintiffs' testator." The plaintiffs further gave evidence by Gerard N. Causin, that he heard the defendant, after the said negro, in the declaration mentioned, was taken by virtue of the replevin issued in this cause, say that it was strange that the plaintiffs' testator should replevy the said negro; for although he had bought the said negro, yet afterwards he had given him to his, the defendant's daughter Sophia. The defendant then gave in evidence the following deposition, taken by consent of the parties in this cause, and admitted to be read in evidence, so far as the same was competent, viz. "Aquila Carroll, of Baltimore county, deposeth and saith, that he well knew Michael Sanderson, in his lifetime, and has heard him say that he had set Marks on his legs, that they had taken all of his property even to a bed, and that they had taken it for house rent, or debts, but for which he cannot now recollect, and that he had given all the property, and a negro boy which formerly belonged to Marks, the defendant, and which he had bought at a sale of Marks' property by the sheriff of Baltimore, to Marks' daughter Sophy, and that he gave them to his [**4]  daughter to prevent his creditors from again taking them; and that this statement he had frequently heard him make." To interrogatories put to the witness by the defendant he answered, 1. That the above conversation took place shortly after the occurrence took place. 2. Sanderson said that the boy and property of Marks, seized and sold by the sheriff, was bought and paid for by him. 3. Sanderson said be had bought the property for the sake of Marks' family, but said nothing about the delivery. 4. Sanderson did not say he was in debt to Marks. 5. Sanderson had no family or any relations, to the knowledge of the witness--He believed he had relations in Europe. 6. He has known Marks for 15 or 20 years. 7. He cannot say that at the time of the conversation before mentioned with Sanderson the negro boy and property were in possession of Marks, and used by him then and afterwards. 8. He does not know how long Marks remained in Baltimore after the sale of the boy and property. He does not think it was many months. Marks' daughter was between the age of 15 and 20 years, and then was living with her father. 9. He does not know that a great intimacy existed between Sanderson and Marks. The defendant [**5]  then offered in evidence the replevin bond filed in this case; and it was admitted that Gerard N. Causin, in the said bond mentioned, and the said Gerard N. Causin, who gave testimony as mentioned herein, was one and the same person. The defendant then prayed the court to instruct the jury, that the testimony of Causin was illegal and not to be regarded by them; of which opinion the court were, and so instructed the jury. To which the plaintiffs excepted.

3. The plaintiffs then prayed the court to instruct the jury, that if from the testimony they should be of opinion that the plaintiffs' testator purchased the said boy Jack at the sale of the defendant's property by John Stevenson, sheriff of Baltimore county, that then, to make a gift of said boy from Sanderson to Sophia Marks good and valid in law, the same must be accompanied by a delivery of possession, or established by a bill of sale from Sanderson to Sophia Marks, acknowledged and recorded agreeably to law. But the court refused to grant the said prayer; but instructed the jury, that if they should be of opinion that the said negro boy was in possession of the defendant, as natural guardian to his daughter, then it was [**6]  such a possession as is required by the act of assembly. To which refusal and opinion of the court the plaintiffs excepted.

4. The defendant then prayed the court to instruct the jury, that from the preceding evidence the plaintiffs were not entitled to recover the said boy in the declaration mentioned. Of which opinion the court were, and so instructed the jury. The plaintiff excepted, and the whole of the preceding formed one bill of exceptions. Verdict as to the first issue, that the property in the said goods, &c. at, &c. was not in the plaintiffs; and the same verdict as to the second issue. Judgment was rendered thereon for the defendant; and the plaintiffs appealed to this court.  

DISPOSITION:
JUDGMENT REVERSED, AND PROCEDENDO AWARDED.  

HEADNOTES:

A surety in a replevin bond is not a competent witness for the plaintiff in replevin.

The bill of sale of a sheriff for chattels levied on and sold by him, is improper testimony in itself, however it may be considered, accompanied by proof of the sheriff's authority to sell the property it professed to convey.

All the testimony offered by the plaintiff, who sued as executor, being rejected by the court as incompetent, and the defendant having given in evidence declarations of the testator, tending to prove the plaintiff's claim, it is a proper case for the jury to consider and decide, and the court have no right to instruct the jury that the plaintiff was not entitled to recover.

The declaration in replevin should not include any property not taken under the writ of replevin.

If a father, as natural guardian of his child, was in possession of a slave at the time of a gift of the slave by the owner to the child, it was such a possession as was required by the act of 1763, ch. 13, s. 3, to make it a valid gift, and passed the property without any further delivery by the donor. 

COUNSEL:
Magruder, for the Appellants, contended, 1. That the bill of sale from the sheriff of Baltimore county ought to have been read in evidence. 2. That the court erred in not instructing the jury that if they should be of opinion from the evidence, that the plaintiffs' testator purchased the boy Jack, for which this action was brought, then to make a gift of said boy from the testator to Sophia Marks good, there must be a delivery of the property, or [**7]  a bill of sale recorded, according to law. 3. That the court erred in instructing the jury that the evidence did not entitle the plaintiffs to a verdict. He referred to the act of 1763, ch. 13, s. 3.

C. Dorsey, for the Appellee.  

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

OPINIONBY:
EARLE 

OPINION:

 [*255]  EARLE, J. delivered the opinion of the Court. The dispute between the parties in this case is about the right of property 

 [*256]  in a negro boy named Jack. The replevin issued for sundry other chattels, but they were not replevied by the sheriff, nor noticed by him in his return of the writ. They nevertheless very inaccurately appear in the declaration; and their caption and detention being complained of, they are embraced in the pleas filed by the defendant, and in the issues tried in the cause; These pleas and issues are, that the property in these goods and chattels, and negro boy, is in the defendant and not in the plaintiffs; and that the property in the same goods and chattels, and negro boy, is in Sophia Marks, the daughter of the defendant, and not in the plaintiffs. On the trial of these issues, the court [**8]  below signed a bill of exceptions, which comprises four several opinions delivered by them. Two on the inadmissibility of evidence, and two on the distinct prayers of the plaintiffs and defendant. In the two first, we entirely concur with the court.
G. N. Causin, having been a security in the replevin bond, was certainly an incompetent witness to testify for the plaintiffs; and the bill of sale signed by the sheriff, Stevenson, was unquestionably improper testimony in itself, however it might have been considered, if it had been accompanied by proof of the sheriff's authority to sell the property it professed to convey.
The prayer on the part of the plaintiffs, the court refused to grant; but they expressed an opinion thereon, in which we coincide. They, in substance, instructed the jury, that if they should be of opinion the defendant, as natural guardian of his daughter, was in possession of the negro boy at the time of the gift, then it was such a possession as was required by the act of assembly to make it a good or valid gift, and passed the property to her without any further delivery by the donor.
The prayer on the part of the defendant, was answered by an instruction [**9]  to the jury, "that from the preceding testimony the plaintiffs were not entitled to recover the negro boy in the declaration mentioned." All the evidence on the part of the plaintiffs had been rejected by the court, and the words preceding evidence can apply only to the testimony introduced into the cause by the defendant himself. This is to be found in the deposition of Aquilla Carroll, who deposed that he had heard Sanderson say, he had set Marks on his legs; that they 

 [*257]  had taken all his property, even to a bed, and that they had taken it for house rent or debt, but for which, the witness could not at that time recollect; and that he had given all the property, and a negro boy, which formerly belonged to Marks, the defendant, and which he bought at a sale of the said Marks's property by the sheriff of Baltimore, to the said Marks's daughter Sophy, and that he gave them to the daughter to prevent his creditors from again taking them; and that this statement he had frequently heard him make. To further interrogatories on the part of the defendant, Aquila Carroll answered, that the conversation with Sanderson alluded to, took place [**10]  soon after the occurrence; that Sanderson said the boy and property of Marks, seized and sold by the sheriff, were bought and paid for by him; that he bought the property for the sake of Marks's family, but said nothing about the delivery, and he did not say he was in debt to Marks. Aquila Carroll also answered to the defendant's interrogatories, that he had known Marks for fifteen or twenty years, but he could not say that at the time of the conversation alluded to, the boy and property were in the possession of Marks, or used by him then or afterwards; that Marks did not remain in Baltimore many months after the sale, that he did not know the year or month of the sale, and that Marks's daughter was then about fifteen or twenty years of age, and was living with her father; and that he had no knowledge of a great intimacy existing between Sanderson and Marks.
This testimony being before the jury, we cannot think the court were right in giving the instruction they did. Upon the facts of the purchase from the sheriff, and the gift to the daughter, depends the question, whether the plaintiffs have a right to recover the negro boy in dispute;  [**11]  and the proof offered of them is not of a character, it would appear, to be decided on by the court. The declarations of Sanderson, in reference to these points, become evidence in the cause, by the defendant's introducing and using them against his executors, and they ought to have been suffered to be considered, estimated and decided on by the jury; especially as the court had before submitted to their reflections, the question respecting the possession of the boy at the time of the gift.
JUDGMENT REVERSED, AND PROCEDENDO AWARDED.  

3 of 23 DOCUMENTS 

JOLLY'S Adm'rs. vs. THE BALTIMORE EQUITABLE SOCIETY FOR INSURING HOUSES FROM LOSS BY FIRE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

1 H. & G. 295; 1827 Md. LEXIS 21 

June, 1827, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court. This was an action of covenant brought by the appellants against the appellees, the plaintiffs and defendants in the court below. The action was grounded on the policy of insurance hereinafter mentioned. The defendants, (now appellees,) pleaded that they had not broken the covenant, &c. on which issue was joined.

At the trial the plaintiffs, (the appellants,) read in evidence the acts of 1794, ch. 39, granting a charter of incorporation to the defendants, and the act of 1801, ch. 35. a supplement to the said act of incorporation. They also offered in evidence the following policy of insurance, dated the 26th of December 1814: "Baltimore Equitable Society, (No. 4,106.) Whereas William Jolly, of Baltimore, in the State of Maryland, hath become a member of the Baltimore Equitable Society, for insuring houses from loss by fire, agreeably to the deed of settlement and act of incorporation thereof, passed by the legislature of Maryland, in the year of our Lord one thousand seven hundred and ninety-four, and hath paid and deposited in the hands of the treasurer of said society, nineteen dollars and thirty-three cents, the receipt whereof we do hereby [**2]  acknowledge, being the full consideration for insuring him the sum of twelve hundred dollars, on the property hereinafter mentioned. Now be it known by this policy of insurance, that the said society do insure, and cause to be insured, against loss by fire, (on the terms and subject to the eventual deficiency of funds in the said deed of settlement mentioned and expressed,) the said William Jolly, his heirs, executors, administrators and assigns, in the sum of twelve hundred dollars, upon his brick dwelling-house, fronting on the south side of New Church-street, between Charles-street and St. Paul's Lane, twenty-four feet, and extending back twenty-one feet, being three stories in front, and two stories in the rear, finished in the plainest manner. This insurance to be and continue for the full term of seven years, from and after the date of these presents. And for the further security of the said insured, we, the directors of the said society, do hereby order and direct the treasurer thereof, for the time being, when and so often as the said house, or any house built in the room thereof, shall be demolished by fire, during the term of this insurance, to pay unto the said William Jolly,  [**3]  his heirs, executors, administrators or assigns, within three months after such demolition, out of the funds of the society, the sum of twelve hundred dollars, and when and so often as the said house, or any house built in their room, or either of them, shall be damaged, injured or impaired by fire, during the said term, that the same be paid agreeably to the estimate thereof, not exceeding the sum of twelve hundred dollars, out of the funds of the society as aforesaid, or that the said buildings be repaired, and put in as good condition as they were before such damage accrued. And we do further order and direct the said treasurer, for the time being, at the expiration of this policy, to repay to the said William Jolly, his heirs, executors, administrators or assigns, nineteen dollars, thirty-three cents, the sum by him paid and deposited as aforesaid, together with his proportionable part of the profits of the business, (if any,) or so much of both or either of them as shall remain unappropriated, towards the payment of losses, and the necessary expenditures of the society; all which payments and repairs shall be made agreeably to the principles and provisions, and subject to the [**4]  limitations and eventual deficiency of funds in the said deed of settlement mentioned and expressed. It is provided in the deed of settlement, and hereby declared, that if the said deposit money shall not be demanded at the office of the society, within one year after the expiration of this policy, that then the right of payment thereof shall cease, and the same remain sunk to the insured, for the benefit of the society. It is also provided in the deed of settlement, and is hereby declared and understood, that if the entire funds of the society should at any time be insufficient fully to pay and discharge all the losses incurred, that then and in such case a just average shall be made, and the payment to be demanded in virtue of this policy, in case of loss or damage by fire to the premises insured, shall be a dividend of the said funds in proportion to the sum insured, agreeably to the true intent and meaning of the said deed of settlement. If the premises insured in this policy are or shall be insured elsewhere, this policy to be void," &c. It was admitted that the said policy was duly executed, and that the insured was at the time the owner of the house in question. The plaintiffs [**5]  also offered in evidence, that after the death of the insured, the plaintiffs, who are his administrators, duly appointed, took possession of the said house, and the same having become much dilapidated, they determined to give it a thorough repair, and in February 1820, engaged a workman to make the repairs; that while the said repairs were going on, in March 1820 the house was set on fire by an incendiary, and damaged in the floors, stair-cases, window frames and roof, to the value of $ 600; and that due notice was given to the defendants of the said loss, and a demand made in due form that they should repair the damages, or pay the sum insured, according to the policy; but the defendants refused to repair or pay the said sum, alleging that they were not liable to be charged with either, and have ever since refused to repair or pay the said sum insured, or any part thereof. The plaintiffs then gave in evidence, that no carpenters' or joiners' work was done in said house for any other purpose than for repairing the said house: that a work bench is considered by carpenters in the light of one of their tools, and that it was usual to do the whole or the chief part of the work at the [**6]  house undergoing repairs, when those repairs were expected or intended to be considerable; and that the repairs made on this house as aforesaid were necessary for the purpose of rendering it tenantable. The plaintiffs further gave in evidence, that no repairs were ever made upon the aforesaid house after the fire damaged it, as before set out; but the same remained, until within four or five months since, in a ruinous state, without being tenanted or tenantable, when it was wholly pulled down; and that the ordinary rent of such a house so situated, if in good repair, was at least $ 150 per annum. It was admitted that the premises insured by the said policy were held in leasehold. The defendants then offered in evidence, that the repairs made by the plaintiffs to the house in question was a thorough repair, and made in the following manner--A plank floor was laid in the kitchen part of the basement story, which floor was of brick at the time the insurance in question was made, the old porch at the front door was taken down, and a new one of the same description put up; new stairs were made from the basement story, to the first floor, new doors were made for several of the rooms, and [**7]  new window cases in some instances, put in, in the basement story. That in order to make these repairs all the materials were taken to the house in question, in a rough state, and were there dressed and fashioned in the usual manner; a work bench and the necessary tools were carried to the house for the purpose of doing the work; that before the fire in question took place, the workmen had been engaged in making the repairs from four to six weeks; that during that time nobody lived in the house, and the chips and shavings and fragments of wood, produced by the work of the joiners or carpenters, were lying about the house, nor had it been occupied for some weeks previously thereto, the same having been suffered by the owners to be untenantable for want of repairs. That the materials were dressed and fashioned in a room on the first floor above the basement story, where the work bench was placed, and the floor of that room was covered with shavings and fragments of plank and seasoned wood, and that it was in this room the fire commenced. And the witness proved, that there was reason to believe that the fire which consumed the premises had been introduced through the broken window, among [**8]  the shavings within, as the interior of the building was more accessible in that way than any other. The defendants then prayed the direction of the court to the jury, that if the jury should find the evidence as above stated in this exception to be true, then the plaintiffs were not entitled to recover. Which opinion and direction the Court, [Archer, ch. J.] gave to the jury. The plaintiffs excepted; and the verdict and judgment being against them, they appealed to this court.  

DISPOSITION:
JUDGMENT REVERSED, AND PROCEDENDO AWARDED.  

HEADNOTES:

The strictness and nicety which have been wisely adopted, in the trial of questions arising on policies of marine insurance, are not to their full extent applicable to the policies of a fire insurance association, formed for the individual accommodation and security of its members, the risks being assumed on the knowledge acquired by an actual examination made by the officers of the company, and not on the representations coming from the assured.

Such an association cannot be viewed as involving in it a mutual relinquishment of the right of exercising those ordinary necessary acts of ownership over their houses, which have been usually exercised by the owners of such property; and, consequently, the insured is authorised to make any necessary repairs in the mode commonly pursued on such occasions; but if by gross negligence or misconduct of the workmen employed, a loss by fire ensue; or if alterations be made in the subject insured materially enhanclng the risk, and not necessary to the enjoyment of the premises insured; or which, according to usage and custom, were not the result of the exercise of such ordinary acts of ownership, as in the understanding of the parties were conceded to the insured at the time of the insurance, and a loss by fire is thereby produced, then are the underwriters released from all liability to indemnify for such loss.

In the absence of any contract, or established rule of law, determining what repairs or alterations the insured was authorised to make, or whether if authorised, they were made in the usual way, the jury is the proper tribunal to decide those questions.

Alterations and additions to houses insured against fire, do not per se change the risk; they remain subject to the same perils, although their degree may be increased or diminished, and the jury is the proper tribunal to decide whether the risk has been increased.  

COUNSEL:
Williams, (District Attorney of U. S.) for the Appellants, contended,

1. That the repairs, which are described in the bill of exceptions as going on, in regard to the house insured, and the necessary occupancy thereof by the carpenter and his tools, were no violation of the terms of the policy of insurance, but were entirely consistent with the contract between the parties.

2. That the court below erred in giving an absolute direction to the jury that the plaintiffs were not entitled to recover, instead of leaving it to the jury to say by their verdict, whether the risk of the insurers was so enhanced by the repairs, that the defendants were not liable [**9]  on the policy to indemnify the insured for the loss by fire, which happened to the premises.

On the first point, he referred to the act incorporating the appellees, 1794, ch. 39, s. 1, Art. 28, 32. 1 Marsh. 185, 200. Taylor vs Curtis, 3 Serg. & Low. 69.

On the second point, he cited 1 Stark. Evid. 409, 410, &c. 1 Marsh. 469, (note,) 470, (and note,) 473, (note b.) Livingston vs Maryland Insurance Company, 6 Cranch, 279. 1 Phill. Evid. 13, (note,) 128. Hucks vs Thornton, 3 Serg. & Low. 15. Duff vs Budd, 7 Serg. & Low. 399. Laidlaw vs Organ, 2 Wheat. 178. Roach vs Pendergast, 3 Harr. & Johns. 33. Athey's Ex'x. vs Collins, 7 Harr. & Johns. 213.

Wirt, (Attorney General of U. S.) and Taney, for the Appellees, on the first point, cited Maryland Insurance Company vs Le Roy, 7 Cranch, 26.

On the second point, they cited 1 Stark. Evid. 416, 417.

Curia adv. vult.  

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

OPINIONBY:
DORSEY 

OPINION:

 [*300]  DORSEY, J. at the present term, delivered the opinion of the Court. The Baltimore Equitable Society for Insuring Houses from loss by fire, being a private association formed by owners of houses in the city [**10]  of Baltimore, by which, collectively, they agree to contribute to the payment of all losses by fire, by them individually sustained, it appears reasonable that their policies should receive a fair and liberal construction, free from all captious technical exceptions.
The strictness and nicety which have been wisely adopted in the trial of questions arising on policies of Marine Insurance are not, to their full extent, applicable to the policies of this society. The former are entered into by the assurer almost exclusively on the statements and information given by the assured himself; in the latter case the insurers assume the risk on the knowledge acquired by an actual survey and examination made by themselves, not on representations coming from the insured. This association, therefore, formed for their individual accommodation and security, cannot, upon any sound principles of construction, be viewed as involving in it a mutual relinquishment of the right of exercising those ordinary, 

 [*301]  necessary acts of ownership over their houses, which have been usually exercised by the owners of such property. It hence follows, that the insured is authorised to make any necessary [**11]  repairs in the mode commonly pursued on such occasions. But if, by the gross negligence or misconduct of the workmen employed, a loss by fire ensue; or if alterations be made in the subject insured materially enhancing the risk, and not necessary to the enjoyment of the premises insured, or according to usage and custom were not the result of the exercise of such ordinary acts of ownership, as in the understanding of the parties were conceded to the insured at the time of insurance, and a loss by fire is thereby produced; then are the underwriters released from all liability to indemnify for such loss. The policy of insurance here being perfectly silent on the subject, and no general principle or rule of law having been established, in cases like the present, by which to determine, whether the repairs or alterations were such as the insured had authority to make as being necessary to the user of the property; and whether, if authorised, they were made in the usual and customary way, the proper tribunal, to decide those questions, is the jury, and not the court.
It appears to have been conceded in argument, that ordinary, necessary repairs might be made by the insured; but not a thorough [**12]  repair like the present. The proof of the appellants is "that the repairs made on this house were necessary for the purpose of rendering it tenantable," and that they were made in the usual way. The bill of exceptions shows, that by the word "repairs" both parties meant all that was done to the house. The distinction attempted to be taken has not been supported by any authorities, and in common sense and justice, there can be no discrimination between the right to make ordinary repairs, and such a thorough repair as is necessary for the purpose of rendering the house tenantable.
It has been stated by the counsel of both parties, that there can be found in the books no adjudication on a policy against fire analogous to the present. It becomes this court, then, maturely to deliberate before they sanction the doctrine contended for by the appellees, which, contrary to justice and the understanding and intention of the parties at the formation of 

 [*302]  their contract, annihilates all claim to indemnity on the part of the insured, and yet leaves the insurer in the full enjoyment of the premium for responsibility. It perhaps scarcely ever happens, that during the period of seven years,  [**13]  the usual term to which such policies are limited, some trifling alteration or addition is not made to the property insured; as a new door or window opened, an additional closet, shelf, or such like fixture erected. Any of which acts, if the grounds assumed by the appellees are supported, change the identity of the property, create a new risk, and absolve the underwriters. Indeed, if alterations and additions are per se a change of the risk, it would follow, that the crection of a parapet wall in a city, a substitution of brick for a wooden floor, or a marble for a wooden mantlepiece, or the introduction of a coal-grate in a chimney constructed for wood as the only fuel, though lessening the peril would discharge the policy; as, according to the principles of maritime insurance, every change of the risk exonerates the underwriter, whether the danger be increased or diminished, or happen the loss from whatsoever cause it may. To infer, without any express provision or necessary implication arising out of the contract itself, or public policy demanding it, that the insured surrendered all right to make such common place, trivial, unimportant additions to, and alterations of his [**14]  property, as its safety or his convenience or comfort might suggest, is a construction too rigorous to be rational. The effect of which would be to render worse than useless those most useful and indispensable institutions in populous cities--the Fire Insurance Companies, and give a fatal stab to our enterprising manufacturers. Who, if suing for a loss under a policy covering the manufactory and machinery, would be turned out of court without remedy or hope, if perchance the insurer could prove that the most immaterial alteration or improvement were made in his machinery by substituting the power of the screw for that of the lever, the leather strap for the iron wheel, or the iron for the wooden shaft. But suppose all the rules of marine insurance applicable to the question at bar, can a case be found in which it was ever contended that to add to the equipment of a vessel insured a yard more of canvass, or an additional cleet or clew line, was to vacate the insurance?

 [*303]  The numerous and warmly litigated questions of deviation and change of risk, which burthen the records of courts of justice, bear no analogy to that now under consideration. There, departing from the course [**15]  of the voyage, or performing it at any other time than that required by the policy, subjects the vessel to different perils than those contemplated by the contracting parties; a flaw, a whirlpool, a breaker, may be encountered in one course of the voyage, which would be a cause of neither danger nor alarm at a mile's distance. The tempests or casualties attending the performance of a voyage to-day, bear no similitude or proportion to those attendant on a like voyage of to-morrow. But no such total revolution is wrought in the perils to a house insured against fire, which has undergone alterations or repairs; it remains subject to the same perils, although their degree may be increased or diminished. It becomes a question of increase, not of change of risk, for the ascertainment of which the jury, and not the court, is the proper tribunal.
The only authority which was strongly relied on by the appellees' counsel, and which was pressed as strictly analogous to the case before the court, was that of The Maryland Insurance Company vs Le Roy, and others, 7 Cranch 26, which was considered as turning, not upon the common principle of deviation, but upon the ground [**16]  of a forfeiture of the insurance by a change of the cargo insured. The suit there instituted was upon a policy on the ship, and the right to recover, therefore, could not be affected by any change in the cargo, unless the risk were increased, or it were a violation of an express warranty. The supreme court, in reversing the judgment of the circuit court, negative the idea that their decision was bottomed on an increase of risk, and furnish not the slightest pretext for placing it on the ground of an express warranty. It cannot, therefore, be viewed as determining any other than the familiar question of deviation; and although the reasoning of the court is not marked with that precision and perspicuity, which is usually displayed by the learned judge, by whom the opinion was pronounced, yet great reluctance would be felt in putting a different construction upon it, after an examination of 

 [*304]  the authorities on the subject, the facts in the cause, and the grounds upon which the reversal was claimed. The ship was insured "at and from New York, to five ports on the coast of Africa, between Castle D'Elmina and Cape Lopez, including those ports, with liberty [**17]  of touching and trading at all or any of said ports backwards and forwards, and at and from her last port on the coast to New York; with liberty of touching at the Cape de Verds, on her return passage, for stock, and to take in water." The declaration was for a total loss by the perils of the sea; and the bill of exceptions, among other facts, stated, "that the ship, in the prosecution of her voyage, arrived at the island of Fogo, one of the Cape de Verd Islands, on the 7th of May 1805, where the captain received on board four bullocks and four jack asses, besides water and other provisions, and unstowed the dry goods, and broke open two bales, and took out forty pieces of each for trade. That the ship remained there until the 24th of May. That the time generally employed by a vessel in taking in stock and water at the Cape de Verd Islands, is from two to three days, unless the weather should be very unfavourable; that the weather was good; and that the bullocks and jack asses encumbered the deck much more than small stock would have done." Upon these facts the court were prayed to instruct the jury, that the taking the jack asses on board the ship, while she lay [**18]  at the Island Fogo, was not within the privilege allowed to the insured to touch at the Cape de Verd Islands, in the performance of the voyage insured, for the purchase of stock, and to take in water, and therefore vitiates the policy; which direction the court refused to give; but the court directed the jury, that the taking in the four jack asses at the island as aforesaid, did not avoid the policy unless the risk was thereby increased. To this direction an exception was taken; and Mr. Pinkney, in showing error, alleges "that the court refused to say that the taking in of the jack asses discharged the underwriters, although it might produce delay. It is not stated that it did not produce delay, and the evidence shows that it did. The principle of deviation is not increase of risk, but delay. If, therefore, here was any delay, the policy was void from that time." By thus arguing, that eminent lawyer admits 

 [*305]  that the policy was not vacated by the simple fact of taking the jack asses on board, but by the delay at the Island of Fogo, for which delay no other reason was assigned. Indeed, when we advert to the facts in the cause, that the ship remained fourteen [**19]  days at Fogo without pretext or apology for so doing, it is difficult to imagine how a momentary doubt could exist on the question of deviation. And it is much more difficult to comprehend why an objection so obviously fatal to the claims of the insured, should, by the prayer of the underwriters, be so loosely and indistinctly presented for decision to the court below. That the supreme court, by whom it was decided, view this case as turning principally on the point on which it is here made to depend, is manifest from the review taken of it by Chief Justice Marshall, in Hughes vs Union Ins. Co. 3 Wheat. 159. He says, "the assured traded, and the delay was considerable and unnecessary; the risk, if not increased, might be and certainly was varied." But admit that the interpretation which has been given by the appellees' counsel to the case of The Maryland Ins. Co. vs Le Roy, and others, be correct, and that the court there decided that the taking on board the jack asses, whether it caused delay or increased the risk or not, discharged the underwriters, this court should not follow a decision at war with reason, justice and public policy, which is bottomed [**20]  on a nisi prius determination, long since acknowledged by its author to have been overruled; and which is inconsistent with numerous decisions of tribunals of the highest authority made after argument and due deliberation. Among which may be numbered the cases of Raine vs Bell, 9 East 195.  Kane vs. Columbian Ins. Co. 2 Johns. 264. Cormack vs Gladstone, 11 East 347. Laroche vs Oswin, 12 East 131. Kingston vs Girard, 4 Dall. 274; and Hughes vs Union Ins. Co. 3 Wheat. 159.
The case of Stetson vs The Massachusetts Fire Ins. Co. 4 Mass. 330, (not cited in the argument) though not containing the same facts, yet presented for decision a question, which in principle cannot be distinguished from that now before the court. In his proposals for insurance Stetson represents his house, (on which insurance was required,) as connected with other buildings on one side only; and such at the time was the 

 [*306]  fact. Under the authority derived from the insured a frame building was subsequently erected and joined to the house insured, so that it became connected, in relation to other buildings, on two of its sides. It was [**21]  afterwards consumed by fire, together with the building annexed to it. By one of the articles of the company (to the operation of which all persons contracting with them are subjected,) it is provided that the insurer may declare the policy null and void in all cases where the insured shall have repaired or enlarged a building, and thereby rendered the risk greater. The question submitted was in effect, whether the court could ex natura rei pronounce the erection of the frame building an increase of risk, or whether that fact were a matter to be found by a jury. The learned judge, by whom the opinion of the court was pronounced, states, "that the question may be examined upon general principles, and upon the terms of the contract." In considering it on general principles he states, that "if every the least alteration or enlargement of a building insured against fire is necessarily and of course material to the risk, and whenever it is made by the act or consent of the insured, is to vacate the policy, unless it should be renewed by the insurer, so close a restraint upon the party would place contracts of this kind in a state of complete uncertainty, and would render them so inconvenient [**22]  as wholly to prevent them." That "the true reason why in a case of marine insurance, a deviation discharges the insurer, is not the increase of the risk, but that the party contracting has voluntarily substituted another voyage for that which was insured. This change of the voyage determines the contract from the time it happens. The same strictness is not requisite in an insurance against fire, where the building, although enlarged or repaired, remains the same: and it is only necessary to guard the insurer from an increase of risk, by an alteration of the building insured." He further states, that it is obvious that "an alteration may diminish and not increase the risk; and if this may be reasonably supposed in any case, then, whether the enlargement of a building insured has increased the risk of the insurer, is a question of fact to be determined by the jury."
It should not be forgotten, that there is no express stipulation restricting the insured as to the acts of ownership he may exercise 

 [*307]  over his property, or the repairs or alterations he may cause it to undergo. All restraints of this character, therefore, arise from necessary implication, founded on the presumed [**23]  intentions and understanding of the parties; and are such as are called for by the dictates of reason, justice or public policy. Apply this doctrine to the case at bar, as exhibited in the appellants' proof, the truth of which must be conceded in granting the prayer of the appellees. All the work was done in the usual manner, and was necessary to render the house tenantable. The insurer, before he assumed the risk, viewed the property, examined its condition, considered all the casualties and incidents to which it might be liable, and, until the contrary is proved, is presumed to be as cognizant of these matters as the insured himself. Did he not know that the insured intended to derive benefit from the use and occupation of his house; that he contemplated keeping it in a tenantable condition? If so, does not reason, justice, and the understanding of the parties, revolt at the idea of an implication which should wrest from the insured the enjoyment of those important, invaluable rights, for the security of which, or an equivalent therefor, the very contract of insurance itself was effected? Nay, does not common sense, public policy, and fair dealing between man and man, demand that [**24]  you should consider it as having been the intention of the parties, and as of the very essence of the contract, that the insured should exercise such acts of ownership over his property, as were necessary to keep it in tenantable condition?
This being a case in which the intervention of a jury was indispensably necessary to adjust the rights of the contending parties, the county court erred in granting the prayer of the appellees, that the appellants were not entitled to recover; for which their judgment should be reversed.
JUDGMENT REVERSED, AND PROCEDENDO AWARDED.  

4 of 23 DOCUMENTS 

GILES, Adm'r. of BACON, vs. PERRYMAN.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

1 H. & G. 164; 1827 Md. LEXIS 10 

June, 1827, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court. Action of assumpsit. The writ was against the defendant (now appellant,) in his own right. The declaration contained two counts. The first count stated, that "a certain James Bacon, late of Baltimore county, deceased, on whose estate the defendant hath administered, some time before his death, cut down, destroyed, and took away, a large quantity of timber from off the land of the plaintiff, for which the said James never paid or satisfied the plaintiff, although often requested so to do, to wit, at the county aforesaid; but always promised and engaged to and with the plaintiff, that he would pay and satisfy him for the same timber. And whereas, after the death of the said James, and the administration on his estate, so as aforesaid taken out by the defendant, he the plaintiff and defendant agreed to leave the valuation of said timber to a certain Abraham Jarrett and Walter T. Hall, of Harford county aforesaid, he the defendant, agreeing to pay to the plaintiff whatever sum the said two persons might determine and award the said timber to be worth. And the said Jarrett and Hall, in pursuance of said agreement between the plaintiff and defendant,  [**2]  afterwards, to wit, on the 30th day of July in the year 1818, at Harford county aforesaid; that is to say, at Baltimore county aforesaid, did award and determine that said timber, so as aforesaid cut down and destroyed, and taken away by said James, was worth the sum of $ 197, and made out a written award to that effect; of which the plaintiff and defendant afterwards, to wit, on the day and year last aforesaid, at Baltimore county aforesaid, had notice. Whereupon the defendant became liable to pay the said sum of $ 197 to the plaintiff; and being so liable, he the defendant, as administrator aforesaid, in consideration thereof, afterwards, to wit, on the same day and year last aforesaid, at Baltimore county aforesaid, undertook and faithfully to the plaintiff did promise, that he the defendant, as administrator of said James as aforesaid, would well and truly content and pay the plaintiff the said sum of $ 197, when afterwards he should be thereunto requested." The second count was upon an insimul computassent between the plaintiff, and defendant as administrator aforesaid, of divers sums of money due and owing by the defendant, as such administrator, to the plaintiff, &c. The defendant [**3]  demurred to the declaration. The county court overruled the demurrer as to the first count in the declaration, and sustained it as to the second count. The defendant, with the leave of the court, then pleaded non assumpsit to the first count, and issue was joined. Verdict for the plaintiff, and judgment against the defendant, as administrator of Bacon, si non, de bonis propriis as to costs. The defendant appealed to this court.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

Where a declaration sets forth a claim or demand of the plaintiff against the intestate of the defendant, and the intestate's promise to pay it, a reference of such demand, by his administrator, (the defendant,) and the plaintiff, to arbitrators--an award, in pursuance of such reference, for a specific sum in favour of the latter--a promise by the defendant, as administrator, to pay it, and charges a breach in the nonpayment of that sum, it contains matter enough to warrant a judgment against the defendant in his character of administrator. The plaintiff is under no necessity to aver assets in the hands of the defendant, as administrator, sufficient to pay his debt.

This peculiar mode of declaring originated in a plan to save the Statute of Limitations, and proceeds upon the ground, that it neither pledges the personal responsibility of the administrator after verdict, nor deprives him of any defence he could have had, if he had been charged with an assumpsit by his intestate; and with these qualifications, it will be received and adopted.

An administrator who relies on the general issue plea, after verdict and judgment thereon, has admitted assets to pay the amount claimed of him.

By the statutes of 21 Jac. I, ch. 13; 5 Geo. I, ch. 13, and the act of assembly of 1809, ch. 153, a variance between the writ and declaration is cured after verdict.

No form of words is necessary to be used in an averment that a defendant is administrator; if enough is said to amount to an allegation, that the defendant administered on the estate of the deceased, it will suffice.

A declaration vicious on account of an averment obscurely made, is not such a fatal objection as will reverse a judgment.  

COUNSEL:
Scott and Meredith, for the Appellant. 1. The declaration does not pursue the writ, and the judgment is against the defendant as administrator. 2. The declaration does not aver that the defendant administered upon the personal estate of Bacon, or that assets came to his hands. 3. A promise by an executor or administrator to pay the debts of the deceased, is nudum pactum, unless assets came to his hands.

The promise from the defendant to the plaintiff is without consideration; and the verdict is, that the defendant did assume, &c. There was no sufficient promise to justify the allegation in the declaration, nor any finding of the jury sufficient for the judgment. Newl. on Cont. 79. There was no averment that assets came to the hands [**4]  of the defendant as administrator, sufficient to enable him to make the promise. Mitchinson vs. Hewson, 7 T. R. 346, (note.) It cannot be supplied by intendment that there were assets in the defendant's hands. The submission to arbitration is not an admission of assets. Pearson vs. Henry's, Adm'r. 5 T. R. 6.

R. Johnson, for the Appellee. The propriety of the judgment below is questioned, principally on two grounds. First. Because the promise declared upon in the first count of the declaration is without consideration, and therefore void; and Secondly. Because if it be a valid promise at all, it was only so far valid as to bind the appellant in his capacity of administrator, and that a sufficiency of assets in his hands to meet the debt should have been averred. Upon the first of these grounds the case of Rann vs. Hughes, cited in 7 T. R. 346, (note a,) and in 1 Com. Cont. 49, was solely relied upon. Adverting to that case, it will be found to have been an action brought against Hughes, the defendant, as administrator, and, that the only question decided, or raised at the argument, was whether upon the declaration there was sufficient matter to authorise the judgment which had [**5]  been rendered in the court below, against the defendant de bonis propriis? There was ample matter in that declaration to have justified a judgment against the defendant de bonis intestatoris. The case turned indeed wholly on the true construction of the fourth clause of the Statute of Frauds, 29 Car. II. ch. 3, in relation to agreements binding executors or administrators personally for the debts of their deceased testators or intestates. That case has no bearing upon the one now before this court. The question here is not, at any rate, whether the first count in the declaration contains matter sufficient to justify a judgment against the appellant in his individual capacity, but whether there is not matter enough in it to warrant a judgment against him in his character of administrator, and of this can there be a doubt? A debt appears by the declaration to have been due by the appellant's intestate. He is charged with having converted to his own use the chattels of the appellee, and to have promised payment for them afterwards, and to have died without making the payment. The appellant, after having administered, and the value of the property thus taken by his intestate, being unascertained,  [**6]  leaves the valuation of it to arbitrators, and agrees, as administrator, to pay what they may award; they make the award stated in the count in question, and the appellant is charged to have promised, as administrator, to pay it. If these facts do not bind the administrator, as in his character of administrator, and authorise a judgment against him in that character, it would be difficult to imagine a case in which such a result could be effected. Sollers vs. Lawrence, Willes, 421.

Upon the second ground, that assets should have been averred, no authoriiy was cited. The question is raised after a verdict in a case in which only the plea of non assumpsit was put in. A want of assets was not set up as a defence below. The court will find this point settled in favour of the appellee in 5 Com. Dig. tit. Pleader, (2 D. 1,) 576, cites 9 Coke, 24, (a;) and in Elting vs. Vanderlyn, 4 Johns. Rep. 237.

It is said also, that there is a variance between the writ and declaration; the one being against the appellant individually, the other as administrator of Bacon. The answer to this is two-fold. First. That in point of law there is no variance which in any stage could be taken advantage [**7]  of; and Secondly. That if there be such a variance, it cannot be taken advantage of on a general demurrer, or at any rate, after a verdict in favour of the plaintiff. 1. It is a well settled principle, that a plaintiff, in his declaration, may narrow the demand he makes of the defendant by his writ. 1 Chitt. Pl. 253. 2. It is too late to take advantage of it. Duvall vs. Craig, 2 Wheat. 45. Vanderplank vs. Banks, 2 Wils. 85. Hole vs. Finch, Ib. 395, and our act of 1809, ch. 153.

The last point is, that the declaration does not aver that the appellant administered upon Bacon's estate. The declaration expressly states that he did administer upon Bacon's estate, and it calls him throughout, such administrator. This way of declaring will be found amply sufficient under any defence which may be pleaded, and certainly where general defence only is taken. Holliday vs. Fletcher, 2 Ld. Raym. 1510. S. C. Stra. 781. Garland vs. Chattel, 12 Johns. Rep. 430. Barnes, 159, 160. 5 Com. Dig. tit. Pleader, (2 D. 11,) 586, and Dean, &c. of Bristol vs. Guyse, 1 Saund. 112, (note 2.) 

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

OPINIONBY:
EARLE 

OPINION:

 [*168]   [**8]  EARLE, J. delivered the opinion of the court. This is an appeal in an action of assumpsit, brought by Perryman, the appellee, to recover a debt due to him from one James Bacon, on whose estate Giles, the appellant, administered. The writ issued against Giles in his own right, the declaration counts on a promise made by him as administrator of Bacon, and the judgment is against him de bonis testatoris. The second count in the declaration was, on demurrer, disposed of by the court against the plaintiff, and makes no part of this case. To the first count the general issue was pleaded, and a verdict rendered against Giles, as administrator, for the debt of the intestate. He has taken this appeal; and upon his objections to the record, the opinion of the court will now be pronounced. The principal objections are to the declaration; and is contended that it does not contain matter enough to warrant a judgment against the defendant in his character of administrator; and that it is defective in not averring assets in his hands to pay the debt, wherewith the judgment charges him as administrator.
The declaration sets forth a debt due from Bacon, in [**9]  his life-time, and his promise to pay it; it sets forth also a reference of this demand between the plaintiff, and the defendant as administrator, to persons named by them, who rendered an award for 

 [*169]  $ 197, due the plaintiff, which sum the defendant, as administrator of Bacon, undertook and promised to pay, and it charges a breach in the nonpayment by the defendant of this sum. This peculiar manner of declaring originated in a plan to save the statute of limitations, is according to the approved precedents of Wentworth and Chitty, and has the authority of several respectable judicial decisions. Secar vs. Atkinson, 1 H. Blk. Rep. 102, is among the earliest of them. In that case the declaration contained four counts. Three upon promises made by the intestate, and the fourth stated, that the plaintiff accounted with the defendant, as administratrix, of and concerning divers sums of money, &c. owing from the intestate to the plaintiff, and upon that account the intestate was found in arrear, and indebted to the plaintiff, &c. and being so found in arrear and indebted, she, as administratrix, in consideration thereof promised, &c. Exception was taken to this [**10]  declaration on the score of misjoinder in action; and it was urged, that the first counts, being on the undertaking of the intestate, and the last count on that of the administratrix herself, the judgment on the former must be de bonis testatoris, and on the latter de bonis propriis. But the court thought otherwise, and distinctly determined that the defendant was charged in all the counts as administratrix, and that the judgment on all the counts should be de bonis testatoris; and in deciding Secar vs. Atkinson, the case of Hawes vs. Smith, 1 Vent. 268, and 2 Lev. 122, was examined by the court, and declared irreconcileable with any true principle of the law. Whitaker vs. Whitaker, 6 Johns. 112, is a more recent authority, giving sanction to this mode of declaring. Judge Spencer, who delivered the court's opinion, not only approves of it, but he states that the same defence may be made to it, as to a count charging the promise made by the testator. In this case, as in the case before us, there is but a single count in the declaration, and it simply states that the testator was indebted to the plaintiff for money lent [**11]  and advanced; and being so thereof indebted, the defendant, as his executor, after his death, in consideration thereof, upon himself assumed to pay, &c. No promise by the testator is stated; and yet it had the approbation of that enlightened court, who declared it a valid declaration, and that the proper judgment thereon was de bonis 

 [*170]  testatoris. These adjudications, it is perceived, go upon the grounds that this mode of declaring neither pledges the personal responsibility of the administrator after verdict, nor deprives him of any defence he could have had, if he had been charged with an assumpsit by his intestate; and it is with these qualifications it will be received and adopted by this court. And the debt due from the deceased, being the consideration of the promise by the executor or administrator, it would be advisable at all times to state it clearly and plainly, and to be prepared to support it by competent proof; as it would be strictly to observe to insert the words, "as executor," or "as administrator," after the promise made by the defendant in his representative character.
The decisions referred to upon this first objection, disposes of the second [**12]  made by the defendant to the plaintiff's declaration.
The plaintiff was under no necessity to aver assets in the hands of the defendant, sufficient to pay his debt as administrator. It was open to the defendant to plea, plene administravit, or any other plea, going to show a defect of assets, as much as it would have been in an ordinary suit against him upon the promises of his intestate; and if this defence was within his power, and has been pretermitted by him, he is only placed in the situation of many others, who have defended themselves on wrong and mistaken grounds. The general issue plea, he has chosen to use, and by the verdict and judgment thereon, he has admitted assets to pay the debt claimed of him.
On the argument of this cause, other objections were made to the record by the defendant's counsel, upon which we will also offer some short observations. It was said that the variance between the writ and declaration is fatal, and ought to reverse the judgment; and that the omission in the latter to aver, that the defendant administered on Bacon's estate, is also a palpable error.
The writ is against the defendant in his own right, and the declaration charges him [**13]  in his representative character, and there is certainly a seeming variance, if he is in time to take advantage of it. This, then, is the question presented to us, 

 [*171]  and it will be answered by a recurrence to the authorities. We have been referred to Duvall vs. Craig, 2 Wheat. 45, where the Supreme Court of the United States say, that a variance between the writ and declaration cannot be taken advantage of on general demurrer, but must be pleaded in the early stages of the case, in abatement. But Serjeant Williams, in his excellent notes on Saunders, (1 vol. 318, note 3,) holds a different doctrine. He has brought together all the adjudications on the subject, and has reasoned himself into the belief, that no advantage whatever can, at this day, be had, either of a defective original, or of a variance between it and the declaration. Be this as it may, and it is a point we do not now mean to decide, we are clearly of opinion, that the appellant has lost the opportunity, if he had one, of availing himself of this defect in the proceedings. There is a verdict rendered in this case for the appellee; and by the statutes of amendment and Jeofails,  [**14]  and an act of assembly passed in 1809, ch. 153, the defect mentioned is cured. The statutes of 21 Jac. I, ch. 13, and 5 of Geo. I, ch. 13, particularly point to a variance between the writ and declaration, and by their provisions, after verdict, the judgment shall not be reversed in any court of record for such variance. The act of 1809, ch. 153, is also explicit on this subject.
The further point in this case is readily answered. It is sufficiently averred in the declaration, that the defendant administered on Bacon's estate. No form of words is necessary to be used in an averment of this kind. If enough is said to amount to an allegation, that the defendant administered on the estate of the deceased, it will suffice. It is here expressly said that he did so administer; and if the defendant had been so disposed, he might have pleaded ne unques administrator, and concluded to the country, which only can be done where the subject matter of the plea is a denial of an affirmative allegation in the declaration. If, however, the declaration could be thought vicious on account of making this averment obscurely, surely it is not such a fatal objection to it [**15]  as will reverse the judgment. No case, authorising such a conclusion, has been hinted at, and certainly the court have no knowledge of such an authority.
JUDGMENT AFFIRMED.  

5 of 23 DOCUMENTS 

BROWN vs. BRICE, Trustee of CAUSTEN.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

2 H. & G. 24; 1827 Md. LEXIS 39 

June, 1827, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court. Assumpsit for money had and received. The case, as agreed upon, was this: James H. Causten issued an attachment out of Baltimore county court against Monte Verde, for the recovery of a debt due to Causten before the 15th of April 1818, and the attachment was laid in the hands of Peter A. Guestier. At March term 1821, of said court, a verdict and judgment was obtained against the garnishee. An appeal was prayed by the garnishee, and the case carried to the court of appeals, where the judgment was affirmed, and an execution issued thereupon against Guestier, the garnishee, who paid the amount to Stewart Brown, as herein after stated. On the 15th of April 1818, Causten applied for the benefit of the insolvent laws of this state, and Frederick Jenkins was duly appointed his provisional trustee, and gave Causten the following authority to collect and settle claims due to him. "Mr. James H. Causten is authorised to settle any transaction in relation to his late business.

(Signed,)     Fredk. Jenkins, Trustee.

Balt. 1 May, 1818."

And under this authority, and the authority of Causten, and at the instance of Guestier, Stewart Brown paid [**2]  the judgment deducting the legal interest, and took an assignment thereof from Causten, as well on his behalf, as on behalf and as the agent of the provisional trustee in virtue of the authority aforesaid. Brown knew at the time he did so, that Causten had petitioned, and that F. Jenkins was the provisional trustee. That the judgment was entered for Brown's use on the docket of the court of appeals, under the authority of Jenkins and Causten as above. The present plaintiff was duly appointed the permanent trustee of Causten, after the said assignment to Brown, and before Brown had collected the amount of said judgment from Guestier. The plaintiff gave notice to Guestier after the judgment was affirmed and execution issued, not to pay the amount to Brown, and was about to apply for an injunction, when it was agreed by the parties to this action that the money should be paid to Brown by the garnishee, Guestier, subject to any claim the present plaintiff might have as trustee. Causten obtained a final discharge as an insolvent debtor on the 26th of September 1818. And it was also agreed that if the court should be of opinion that Brown derived no right or title to the judgment so satisfied [**3]  by and assigned to him, then a judgment to be entered for the plaintiff for the amount of the judgment in the court of appeals as affirmed, with interest and costs; otherwise for defendant.

A judgment pro forma was entered on the case stated, for the plaintiff, and the defendant appealed to this court.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

The provisional trustee of an insolvent debtor, appointed under the act of 1816, ch. 221, is the mere recipient of the property of the insolvent, which the law contemplates his obtaining immediate possession of from the insolvent himself, and not by suit against a third person.

Such a trustee is not authorised to assign the insolvent's judgments; and where one purchased such a judgment from that trustee, and collected the same, he is answerable for the amount received by him, to the permanent trustee, in an action for money had and received.  

COUNSEL:
Williams, (District Attorney of U. S.) for the Appellant, contended, 1. That the advance of money made by Brown, at the instance of Guestier, was a payment by Guestier of the judgment recovered against him under coercion of the law, and the payment was, under the circumstances stated, a valid one, and binding on the insolvent's estate.

2. That even if not made under coercion of the law, the payment was a valid one, either as made by Guestier or by Brown, having been made to persons legally authorised to receive it.

3. That no injunction could have been sustained to prevent the payment of the money to Brown by Guestier, at the time when such payment was made.

He referred to the acts of 1805, ch. 110, s. 8, and 1816, ch. 221, s. 2, 3. Kennedy v Boggs, 5 Harr. & Johns. 403. 3 Petersdorff, 625. Page v Bauer, 4 Barn. & Ald. 345. 3 Petersdorff,  [**4]  807, (notes,) 922. Foster v Allanson, 2 T. R. 479.

R. B. Magruder, for the Appellee. On the first point, he cited Martin v Mechanics Bank of Baltimore, 6 Harr. & Johns. 239, 241, 245, 246; and the act of 1715, ch. 40.

On the second point, he cited King v Leith, 2 T. R. 143. Hindle v Bell, 3 Serg. & Low. 61. Kennedy v Boggs, 5 Harr. & Johns. 408.

On the third point, he cited Cumming v Roebuck, 3 Serg. & Low. 64.  

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

OPINIONBY:
BUCHANAN 

OPINION:

 [*26]  BUCHANAN, Ch. J. delivered the opinion of the court. This case arises out of, and depends upon, the construction of the act of 1816, ch. 221, relating to insolvent debtors in the city of Baltimore. The provision of that act, so far as concerns the appointment and duties of provisional trustees, is, "that the commissioners shall appoint a provisional trustee, to take possession, for the benefit of the creditors, of such insolvent debtor, of all property, estate and effects, books, papers, accounts, bonds, notes, and evidences of debts," and no other duty is by that act assigned to the provisional trustee so to be appointed, who is not so much as required [**5]  to give bond for the faithful discharge of the trust reposed in him.
In Kennedy v Boggs, 5 H. & J. 403, it was decided 

 [*27]  by this court, that such provisional trustee could not sustain a suit in his own name, for the purpose of reducing to possession the property of the insolvent, he being only authorised to take possession for the benefit of the creditors; but that in order to acquire possession suit could only be brought in the name of the insolvent, in whom the title remained until the appointment of a permanent trustee.
He is the mere recipient of the property of the insolvent, which the law would seem to contemplate his obtaining immediate possession of, from the insolvent himself, and not by suit against a third person; since it is upon the report of the commissioners "that he is in possession of all the property of the insolvent," that the personal discharge is granted, which report is required to be made by the commissioners, in the language of the act, "immediately thereafter," that is immediately after the appointment of such provisional trustee, and the taking a bond for the appearance of the insolvent debtor to answer interrogatories, &c.
But [**6]  for the authority, therefore, of Kennedy v Boggs, which is not intended to be disturbed, it might perhaps be plausibly questioned, whether a provisional trustee could sue at all even in the name of the insolvent, according to the spirit of the law, which contemplates a final discharge, and the appointment of a permanent trustee, in whom the property is to vest in a shorter time than would be required to bring a suit by the provisional trustee to a final issue. And his office being only to take possession of the property and evidences of debts of the insolvent, for the benefit of creditors, and that too without being required to give bond, it may well be doubted whether he has any authority in the name of the insolvent to sue for and collect his debts; to that extent the decision in Kennedy v Boggs, does not go.
The object of appointing a provisional trustee is that the property may be protected until the appointment of a permanent trustee, and the insolvent not permitted to waste or make way with it to the prejudice of the creditors. And hence he is required to take possession of the books, papers and accounts, and all evidences of debt; by which means the debts are placed [**7]  beyond the reach or control of the insolvent, who not being in 

 [*28]  possession of such evidences, can neither pass them away, nor sue for and recover the debts. If that was not the intention of the legislature, the providing for the appointment of a provisional trustee, and requiring him to take possession of all the evidences of debts, was perfectly nugatory. With respect to the provisional trustee himself, the express authority given to him is only to take possession of the evidence of debts, &c. He is not an officer in the confidence of the creditors; they have no participation in his appointment, and repose no trust in him. And if he is permitted to sue for and collect the outstanding debts, in the name of the insolvent, the creditors are placed entirely at his mercy, and are in a situation of very little, if any more security, than if there was no such provisional trustee. For, though he stands in the way of a waste and misapplication of the funds by the insolvent, yet there is certainly less danger of a total loss of those funds, when in the hands of many, in the shape of outstanding debts, than when drawn together into the hands of a single individual, who has given no [**8]  security for the safe-keeping of those funds. And although the suspending the collection of the debts until the appointment of a permanent trustee, might in practice be accompanied by occasional inconvenience and loss, yet the law contemplates a final discharge, and appointment of such permanent trustee speedily after the application for the benefit of its provisions, and does not look to a delay pregnant with as much danger of loss as the collection of the debts by the provisional trustee. But if it be admitted that the provisional trustee has a right to sue for, and collect the debts, in the name of the insolvent, and so far as concerns this case, it may be admitted, yet it is very clear that he has no authority to pay or compound the debts of the insolvent, or to sell, or in any manner dispose of, his property, or assign away or transfer the evidences of debt; his duty is to take and retain the possession for the benefit of the creditors, until the appointment of a permanent trustee, in whom the title to all the property of the insolvent vests.
The case before us then is plainly this--James H. Causten, a citizen of Baltimore, having a claim against one Monte Verde, [**9]  sued out an attachment, which was laid in the hands of Peter A. Guestier. Causten afterwards, on the 15th of April 

 [*29]  1818, applied for the benefit of the insolvent laws. Frederick Jenkins was appointed provisional trustee, who on the 1st of April 1818, gave him authority to settle up his affairs; and on the 26th of September 1818, he obtained a final release. The attachment was prosecuted against Guestier, the garnishee, to a verdict and judgment in Baltimore county court at March term 1821, from which there was an appeal to this court, where the judgment was affirmed. Pending the appeal, Causten, under the authority given him by Jenkins, the provisional trustee, to settle up his business, sold the original judgment against Guestier, to Stewart Brown, the appellant, who with a knowledge that Causten had applied for the benefit of the insolvent laws, and that Jenkins was appointed provisional trustee, paid for it the amount, deducting the legal interest, and took from Causten, acting as well in his own behalf as agent of Jenkins, as assignment of the judgment, which on the same authority was entered on the docket of this court [**10]  for the use of Brown. After this John Brice, the appellee, was duly appointed the permanent trustee; and after judgment was affirmed, and an execution had issued, he gave notice to Guestier, the garnishee, not to pay the amount to Brown, when it was agreed between Brice and Brown, that the money should be paid to Brown, subject to any claim that Brice might have to it as trustee, which was accordingly done; and this suit for money had and received, was brought to recover from Brown the amount so received by him. And the question raised and submitted to us is, whether Brown has a right to it under his purchase, and the assignment by Causten of the original judgment to him; or whether the title to it is in Brice as trustee? Whether the attachment originally sued out by Causten was properly prosecuted in his name to final judgment, is not now a question; the judgment being rendered, and afterwards on appeal affirmed without objection, it is conclusive; and the only inquiry is, whether it was competent to Jenkins, the provisional trustee, or to Causten, either on his own account, or as agent of Jenkins, to give to that judgment [**11]  any direction different from that provided by the insolvent laws. Causten himself having before obtained a final release, could in law have no control over it--his right to dispose of it was gone; and Jenkins 

 [*30]  could neither sell or dispose of it himself, nor authorise another to do so, any more than he could dispose of a bond, or any specific piece of property of the insolvent, coming into his possession as provisional trustee for safe-keeping only.
It stood as an evidence of debt for the benefit of the creditors, and the right did not pass to Brown by the unauthorised assignment; but on the appointment of Brice as permanent trustee, vested in him. If it were otherwise, it would always be in the power of an insolvent, and the provisional trustee, to place the whole of the property beyond the reach of the permanent trustee, who is alone entrusted with the settlement of the affairs of the insolvent, and to whom alone the interests of the creditors are confided beyond the mere preservation of the property until he is appointed, which, (and nothing more,) is given to the provisional trustee. Brown, therefore, acquired no right by the assignment of the judgment [**12]  by Causten, to the money which is the subject of this suit; and under the agreement between the parties Brice is entitled to recover.
It was supposed, in argument, not to have been a "purchase" by Brown of the judgment, but a payment in discharge of it. We have considered it otherwise, and treated it as a purchase, the only light in which it can be viewed; and on that ground,
JUDGMENT AFFIRMED.  

6 of 23 DOCUMENTS 

RABORG'S Adm'x. vs. HAMMOND'S Adm'r.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

2 H. & G. 42; 1827 Md. LEXIS 43 

June, 1827, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court. This was an action of replevin, brought on the 14th of September 1816, by the appellee, (the plaintiff in the court below,) against the appellant, (the defendant in that court,) for a slave named Nathaniel. The declaration stated the property of the slave in question to be in the plaintiff as administrator. The defendant pleaded property in herself as administratrix. To this plea there was a general replication, and issue was joined.

1. The plaintiff at the trial offered to read in evidence the following paper, purporting to be a copy of the will of a certain Thomas Hammond, under whom the plaintiff claims the property in dispute in this cause: "In the name of God, Amen. I, Thomas Hammond, of Anne-Arundel county, and province of Maryland, being of perfect sound mind and memory, and ordered in a few days to join General Washington's army, and if it should be the pleasure of our Supreme Judge that I should not return again, I hereby make my last will and testament in manner and form following, to wit: I give," &c. &c. "Item. I give and bequeath unto my said son, Thomas Hughes Hammond, his heirs and assigns forever, negroes Mariah and Nell, also [**2]  three of my best horses, and four of my best cows, with all the increase of the said negroes and stock, but the said negroes and stock are to remain and in possession of his mother until he shall arrive to the full age of twenty-one years, and if his mother should depart this life before he shall arrive to the full age of twenty-one years, then my executors are to take the said negroes and stock under their care. And if the said Thomas Hughes Hammond should die without heir of his body lawfully begotten, or before he shall arrive unto the full age of twenty-one years, then I give and bequeath unto my brother Andrew Hammond, his heirs and assigns, forever, all my dwelling plantation, with the appurtenances thereto belonging; also the negroes and stock devised above to the said Thomas Hughes Hammond, but the negroes to remain and be in possession of his mother, Elizabeth Hammond, during her natural life. It is also my desire that the lot of ground," &c. &c. "I hereby appoint my brothers William Hammond and Andrew Hammond to be executors of this my last will and testament. In testimony whereof I have hereunto affixed my hand and seal this twenty-sixth day of August 1776.

Thomas Hammond,  [**3]  (Seal.)

Signed, sealed and delivered, in the presence of us, George Hammond, junr. Harriet Hammond, Margaret Hammond.

Anne-Arundel County, sct. The 24th March 1777, came George Hammond, one of the subscribing witnesses to the within will, and made oath on the Holy Evangels of Almighty God, that he saw Thomas Hammond, the testator, sign and seal this will, and heard him publish, pronounce and declare the same to be his last will and testament, and at the time of his so doing he was of a sound and disposing mind, memory and understanding; and that he, together with Harriet Hammond and Margaret Hammond, signed their names as witnesses to this will, in the presence and at the request of the testator, and in the presence of each other.

Sworn before me,     Eli Valette, D. Com. A. A. Co.

[SEAL.]

In testimony that the foregoing is a true copy taken from Liber W. S. No. 2, folios 432 to 433, I hereto set my hand, and affix the seal of my office, this 21st day of May 1825.

Thos. H. Hall, Reg. Wills, A. A. Coty."

To the reading of which paper in evidence the defendant objected; but the Court, [Archer, Ch. J. and Ward, A. J.] overruled the objection,  [**4]  and suffered the paper to be read to the jury, being of opinion that the same was competent evidence in this cause. The defendant excepted.

2. The plaintiff then proved by a competent witness, that Thomas Hammond, the above named testator, died in January 1777, and Andrew Hammond, who is named in the aforementioned will, survived the testator, and resided and died in Anne-Arundel county in this state, a few hours after the testator. And then, to show himself to be the administrator of the said Andrew, duly appointed, offered to read, and did read in evidence, the following certificate of the granting of administration on the estate of said intestate, Andrew Hammond, to him the plaintiff, given by the register of wills for Baltimore county in this state.

"United States of America. The state of Maryland, to all whom these presents shall come. Know ye, that on the eleventh day of June, in the year of our Lord one thousand eight hundred and sixteen, administration of all and singular the goods, chattels and credits, which were of Andrew Hammond, late of said county, deceased, was granted and committed unto Samuel J. Donaldson of the county aforesaid, he having first entered into [**5]  bond, with sufficient security, for the due performance thereof; and also taken an oath well and truly to administer the same, to exhibit a true and perfect inventory of the said goods and chattels, and to render a just account of his administration when he should be thereto legally required.

[SEAL.]

Given under my hand, and seal of office, this twenty-fourth day of October, in the year of our Lord eighteen hundred and twenty-five, and of the independence of the United States the fiftieth.

D. M. Perine, Register of Wills for Baltimore County."

Upon which the defendant prayed the opinion of the court, that the letters of administration, so granted to the plaintiff, were wholly inadmissible and void, and that the orphans court of Baltimore county had no authority to grant the same. Which opinion the court refused to give. The defendant excepted.

3. The plaintiff then gave in evidence, by a competent witness, that Thomas Hammond, the testator before mentioned, and Andrew Hammond, the plaintiff's intestate, died and were buried on the same day, at their father, Lawrence Hammond's farm; and he further offered to prove by the same witness, that he was well acquainted [**6]  with the family of the said Thomas and Andrew Hammond, and was at their father's, and heard, on the day of the burial of the said Thomas and Andrew, and at their funeral, that the said Thomas died a few hours before the said Andrew; and that he heard that fact from the father (who is now dead,) of said Thomas and Andrew, and from the sisters of said Thomas and Andrew, one of whom, (that is one of the sisters,) is now dead, and the other, Harriet Hammond, is now living in the city of Baltimore. To the admissibility of which said hearsay evidence of the death of said Andrew after Thomas, the defendant objected. But the court were of opinion that the evidence of the time of the respective deaths of Thomas Hammond and Andrew Hammond, so far as the information of the witness was derived from the father and sister who are now dead, is admissible evidence to prove that the said Andrew Hammond survived the said Thomas. The defendant excepted.

4. The plaintiff in addition, &c. offered in evidence, that Thomas Hammond, late of Anne-Arundel county, deceased, was in his lifetime possessed of two negro women named Nell and Maria, as his own property; and on the 26th of August 1776, duly executed [**7]  his last will and testament, as herein before mentioned; that after the executed his last will and testament, as herein before mentioned; that after the execution of said will and testament the said Thomas Hammond, the testator, departed this life, possessed of the said negroes as his own property, leaving his said son Thomas Hughes Hammond then an infant, and his widow the said Elizabeth, the mother of the said Thomas Hughes Hammond, and the said Elizabeth took possession of said negroes Nell and Maria; that after the death of said testator the said negro Nell had a son named Nathaniel, or Nat; and that said Thomas Hughes Hammond afterwards departed this life before he attained the age of twenty-one years, unmarried, and without issue. That the said Elizabeth Hammond, after the death of her said son, retained the possession of said negroes Maria and Nell, and their increase, and sold Nat above named, to a certain Samuel R. Smith, for a valuable consideration, and delivered to him the possession of said Nat; and the said Samuel R. Smith afterwards sold and delivered said negro Nat to the defendant's intestate for a like consideration; and that said Elizabeth afterwards died before [**8]  the present action was instituted. The plaintiff also offered in evidence, that Andrew Hammond, named in the will of said Thomas Hammond, survived the said Thomas, the testator, and afterwards died in the lifetime of said Thomas Hughes Hammond, intestate. And also offered and read in evidence the certificate of the granting of the letters of administration on the personal estate of said Andrew Hammond, to the plaintiff. And also offered in evidence, that negro Nathaniel or Nat, above named, to recover whom the present replevin was brought, is the same negro Nathaniel or Nat, who was the son of negro Nell above named. Whereupon the defendant prayed the opinion of the court, and their direction to the jury, that upon the evidence above stated the plaintiff is not entitled to recover. Which opinion and direction the court refused to give. The defendant excepted; and the verdict and judgment being against her, she appealed to this court.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

In an action of replevin for a slave, where the plaintiff derived his title under a will, a copy certified by the register of wills under his seal, is competent evidence.

The orphans court of one county have no authority to grant letters of administration on the estate of a person who resided and died in another county.

By the act of 1798, ch. 101, sub ch. 5, s. 3, the orphans courts are expressly enjoined to inquire into and adjudicate on, the "time and place" of the death of a deceased intestate. That duty, however, is presumed to have been rightfully discharged, when the question of administration incidentally arises in other courts; and therefore, in a suit instituted by the administrator, it is not competent for a court of law to go into an inquiry whether administration has been rightfully granted or not.

If letters of administration have been improvidently issued, or have been obtained by fraud, or deceit, they may be revoked by the orphans court upon application made for that purpose; the power of revocation under such circumstances, being necessarily inherent and a part, and of the essence of the power delegated to them, of granting administration.

Where a witness stated that he was well acquainted with the family of two brothers, and was at their father's, and heard on the day of their burial, and at their funeral, from their father and sisters, that one of them, (naming him,) died a few hours before the other; and although at the time of the examination, one of the sisters was alive, and within the reach of the process of the court, the father and the other sisters was alive, and within the reach of the process of the court, the father and the other sister being dead--Held, that such evidence of the times of the respective deaths of the said brothers, so far as the information of the witness was derived from the deceased father and sister, was admissible to prove which of the two brothers survived the other.

A devise of negroes to T, his heirs and assigns, and "if the said T should die without heirs of his body lawfully begotten, or before he shall arrive unto the full age of 21 years, then to A," &c. is good by way of executory devise to A. The word or in this limitation being construed to mean and.  

COUNSEL:
Meredith, and R. Johnson, for the Appellant, contended, 1. On the first bill of exceptions, that the paper offered in evidence was improperly admitted, because it was not properly authenticated.

2. On the second bill of exceptions,  [**9]  that as Andrew Hammond, the plaintiff's intestate, appears by the evidence to have resided and died in Anne-Arundel county, the orphans court of Baltimore county had no authority to issue letters of administration on his estate; and that the letters which they did issue were wholly void.

3. On the third bill of exceptions, that the hearsay evidence of the times of the deaths of Thomas and Andrew Hammond, admitted by the court below, was improperly received.

4. On the fourth bill of exceptions, that the court below should have granted the defendant's prayer, that the plaintiff was not entitled to recover; because by the will of Thomas Hammond, the absolute property in the woman Nell, and her increase, part of which issue was in controversy in this cause, was vested in Thomas Hughes Hammond, the legatee mentioned in the will; and the bequest over to Andrew Hammond, the plaintiff's intestate, was void, because too remote.

1. The objection raised as to the evidence admitted in the first bill of exceptions was abandoned.

2. On the second point, they cited the act of 1798, ch. 101, sub ch. 5, s. 2, and sub ch. 15, s. 20. Scott v Burch's Adm'x. 6 Harr. & Johns. 67. Cullum [**10]  v Bevans, Ib. 469. 2 Stark. Evid. 546. Wilbraham v Snow, 2 Saund. 47. k. The State use of Marshall v Spedden, 3 Harr. & Johns. 251.

3. The hearsay evidence offered was inadmissible, because there was a person living who was a witness to the same fact. It was not, therefore, the best evidence in the reach of the party. 1 Phill. Evid. 174, 167, 175. Williams v East India Company, 3 East, 193.

4. The bequest over was too remote, and was therefore void. Even if or is to be construed and, yet the limitation over is void. Whitmore v Weld, 1 Vern. 326, 347. Gray v Shawn, 1 Eden, 153. But neither of the constructions is the correct one. The court may reject the words "or before he shall arrive unto the full age of twenty-one years." Attorney-General v Hird, 1 Bro. Ch. Rep. 170. If the preceding words are retained, do they import a general failure of issue of the legatee? 2 Fearne, (7 Ed.) 136, 339, 486. Goodman v Goodright, 2 Burr. 873. 2 Blk. Com. 175. Dallam v Dallam's Lessee, 7 Harr. & Johns. 220. The words heir of the body, and heirs generally, and like issue, are synonimous. Butterfield v Butterfield, 1 Ves. 133. Attorney-General v Hird, 1 Bro. Ch. Rep. 170. Crooke v De Vandes,  [**11]  9 Ves. 197. Elton v Eason, 19 Ves. 73. Hill v Burrow, 3 Call's Rep. 342. Tate v Tally, Ib. 354. The opinion of Daniel Dulany, Esquire, 1 Harr. & M'Hen. 559. Britton v Twining, 3 Meriv. 176, 183. Fearne, 178. Co. Litt. 22, a. 6 Cruise, 332, s. 13, 14, 15. Denn v Slater, 5 T. R. 335. Preston on Leg. 98. Donn v Penny, 1 Meriv. 20. Purefoy v Rogers, 3 Saund. 388, (note 9.) Seale v Seale, 1 P. Wms. 290. Stratton v Payne, 3 Bro. P. C. 257. Preston, 148. Barlow v Salter, 17 Ves. 481. Hunt v Stevens, 3 Taunt. 115. 2 Phill. Evid. 290.

Taney, and S. J. Donaldson, for the Appellee. 1. On the second bill of exceptions, they referred to the act of 1798, ch. 101, sub ch. 5, s. 2, 3, and the act of February 1777, ch. 8, which was not repealed by that of 1798, except so far as was inconsistent with it. They cited Kempe's Lessee v Kennedy, 5 Cranch, 186. Shivers v Wilson, 5 Harr. & Johns. 130. Barney v Patterson, 6 Harr. & Johns. 182. Burch v Scott, 1bid, 67. 3 Bac. Ab. 50, 51. Hepburn v Sewell, 4 Harr, & Johns. 393.

2. On the third bill of exceptions, they cited 1 Phill. Evid. 187. Jackson v Boneham, 15 Johns. Rep. 226. Higham v Ridgway, 10 East, 120. Whitelocke v Baker, 13 Ves. 514.

3.  [**12]  On the fourth bill of exceptions, they were stopped by the court.  

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

OPINIONBY:
DORSEY 

OPINION:

 [*49]  DORSEY, J. delivered the opinion of the court. The opinion of the county court, on the first bill of exceptions, being concurred in by consent, we approach the consideration of the question arising on the second bill of exceptions, not without a just sense of its intrinsic difficulty, and the important consequences which may result from its determination, let that determination be what it may.
It cannot be denied, that if Andrew Hammond resided and died, as is alleged, in Anne-Arundel county, that the orphans court of Baltimore county had no authority to grant on his estate letters of administration to the appellant.
But the question is, such letters having been granted, is it competent for a court of law, in which a suit may be instituted by the administrator, to go into an inquiry whether administration has been rightfully granted or not?
If such inquiry can be made in this incidental collateral mode of proceeding, you convert the county courts into appellate tribunals to reverse and [**13]  reverse the decrees of the orphans court, on subjects over which, by law, they have the sole and exclusive jurisdiction, and in relation to which their acts can only be reviewed by regular appeal to the court of chancery or court of appeals; and this inquiry, too, if tolerated, would generally work injustice, and operate as a surprise upon the party. Without any direct or positive monition that the legality of his appointment were at all put in issue, he might be turned out of court by the admission of testimony which he did not anticipate, and of which he could have offered the most conclusive refutation, had an opportunity been afforded him. Resting, too, upon verdicts of juries, the question of administration would ever be involved in perilous uncertainty; a verdict delivered in one case would be no evidence on a trial in another; conflicting verdicts might be given by different juries in the same term, and in the same court; and much more probable is it, that such incongruity 

 [*50]  would arise where trials are had in different courts, or at different terms. Indeed it might not unfrequently happen, in such a state of interminable controversy, that an administrator, after recovery [**14]  of one half the property and debts belonging to the deceased, by the death of witnesses, or some such cause, might be forever deprived of all chance of recovering the residue; the proof to sustain his right to the administration being no longer attainable; a result ruinous as well to creditors as to helpless widows and orphans, who have ever been the especial objects of favour and protection of the law. Every consideration, therefore, of convenience, justice and public policy, demands that the question of administration, when finally determined by the tribunals created for that purpose, should never be a subject of doubt or litigation when incidentally arising in other courts. Such an anomaly in judicial proceedings, this court would never willingly sanction.
By the act of 1798, ch. 101, sub ch. 5, s. 3, the orphans courts are expressly enjoined to inquire into and adjudicate on the "time and place" of the death of the deceased intestate; and this duty we are bound to presume has been rightly discharged; but whether it be so or not, is in this case no longer a subject open to discussion. If there be any principle of law in this state unalterably settled by authority it [**15]  is this, that the judgment of a court of competent jurisdiction, when coming incidentally in question, or offered as evidence of title in any other court, (as is the case here,) is conclusive upon the question decided, and cannot be impeached on the ground of informality in the proceedings, or error or mistake of the court, in the matter on which they have adjudicated. Barney's Lessee v Patterson, 6 H. & J. 182, and the case of Taylor & M'Neal v Phelps, 1 H. & G. 492.
It has been strongly urged in the argument of the appellant's counsel, that if the judgment of the county court be sustained, the grossest frauds and deceptions will be practised in obtaining letters of administration in other counties than those in which intestates may have died; and that there may be at the same time two or more administrators appointed by the orphans courts of different counties.

 [*51]  Let the decision of this court on the subject before them be what it may, it neither increases nor lessens the inconveniencies which have been suggested.
For this evil the orphans courts alone are competent to apply a remedy. If letters of administration have been improvidently [**16]  issued, or have been obtained by fraud or deceit, they may be revoked by them upon application made for that purpose.
But it is alleged that this power of revocation is denied to the orphans courts by the 20th section of the 15th sub chapter of the act of 1798, ch. 101, which provides that "the orphans courts shall not under pretext of incidental power or constructive authority exercise any jurisdiction whatever not expressly given by that act or some other law." But to this it may be answered that we deem the power of revocation, under such circumstances, as necessarily inherent in the orphans courts, and a part and of the essence of the power delegated to them, of granting administration. In confirmation of which, see 3 Bac. Ab. 50, where speaking of the ecclesiastical tribunals of England in the reference to this power, it is stated, that "it would be absurd to allow a court jurisdiction herein, and at the same time deprive them of the liberty of vacating and setting aside an act of their own, which was obtained from them by deceit and imposition." But this question, even if it were matter of doubt, we should be disposed to view as settled by the construction [**17]  given to this act of assembly by the orphans courts, who have exercised this power from the time of its passage until the present day, a space of nearly thirty years; and by the decision of this court in the case of Fishwick v Sewell, 4 H. & J. 393, where in affirming the opinion of the county court in rejecting testimony offered to impeach letters of administration, they say, "that the said letters of administration were legally efficient until revoked, being clothed with all the requisite solemnities to communicate power and authority to the plaintiff to administer;" thus distinctly recognizing the authority of the orphans courts to revoke letters of administration improperly granted.
It is, however, further urged as a reason why the inquiry attempted in the county court should be permitted, that admitting 

 [*52]  the existence of the power of revocation in the orphans courts; yet it may occur that where there are two administrations, upon mutual applications to revoke, both courts may overrule such applications, and thus a double administration would be legalized. To this suggestion the reply is, that such an event, though possible, is of improbable occurrence;  [**18]  that should it ever happen by mutual appeals to this court, the corrective would be speedily applied.
In the opinion of the county court then, in the second bill of exceptions, we see nothing to complain; nor is there discernible in the third bill of exceptions any greater cause of complaint. To show that Andrew Hammond survived the testator, Thomas Hammond, and thus became capable of taking the property devised to him, on the happening of the contingency mentioned in Thomas Hammond's will, the plaintiff offered to prove by a competent witness, that he was well acquainted with the family of Thomas and Andrew Hammond, and was at their father's, and heard, on the day of the burial of the said Thomas and Andrew, and at their funeral, that the said Thomas died a few hours before the said Andrew, and that he heard that fact from the father, (who is now dead,) of said Thomas and Andrew, and from the sisters of the said Thomas and Andrew, (one of whom is now dead,) and the other, Harriet Hammond, is now living in the city of Baltimore. To the admissibility of which hearsay evidence of the death of said Andrew and  [**19]  Thomas, the defendant, by her counsel, objected; "but the court were of opinion, that the evidence of the times of the respective deaths of Thomas Hammond and Andrew Hammond, so far as the information of the witness was derived from the father and sister, who are now dead, is admissible evidence to prove that the said Andrew Hammond survived the said Thomas;" and with this opinion we entirely concur. It is objected that the witness having stated that he received the same information from Harriet Hammond (a witness within the reach of the process of the court,) that he did from her father and sister, he has thereby shown that there is better evidence attainable than that which was offered; that Harriet Hammond, whose testimony the plaintiff might have obtained, was present at the death of her brothers, and if produced could prove who died first. 

 [*53]  But neither of those positions are sustainable. It does not appear by the testimony offered, that either the father, Harriet Hammond, or her deceased sister, were eye-witnesses of the death of Thomas and Andrew Hammond, or either of them. For aught that is disclosed by the witness, the father [**20]  and deceased sister may have been present at the deaths, but not Harriet Hammond, her information may have been derived from them, or from some other less authentic source; and this may be the reason why her attendance was not required by the plaintiff. This court, however, wish to be understood as not even giving an intimation that there would be any error in the opinion of the county court, if the testimony offered had shown that the father and both sisters were present at the deaths of Thomas and Andrew Hammond.
In the fourth bill of exceptions, the court having refused the general prayer of the defendant, that the plaintiff was not entitled to recover, the appellant seeks to reverse this opinion on the ground that the limitation over (in the will of Thomas Hammond,) to Andrew Hammond, in case "Thomas Hughes Hammond should die without heir of his body lawfully begotten, or before he shall arrive unto the full age of twenty-one years," operated by way of contingent remainder, and not by way of executory devise. That the words "heir of his body lawfully begotten," were synonimous with the word "issue," was rightly admitted by the counsel on both sides.  [**21]  That the word "or," in the limitation over, must be construed to mean "and," in the place in which it was used; and in all similar limitations, where the effect of construing it disjunctively would be to disinherit the issue of the first devisee, should he die under the age of twenty-one years, has been so repeatedly settled by the most solemn adjudications, that it has become the duty of courts of justice no longer to listen to an argument on the subject, much less to refer to authorities in support of such a position. The words "heir of his body lawfully begotten," in the devise in question, being assumed to mean "issue," and the word "or" to mean "and," that the limitation over to Andrew Hammond operates as a good executory devise, (Thomas Hughes Hammond having died under age and without issue,) is so immutably fixed by the recent solemn decisions 

 [*54]  of this tribunal in the cases of Dallam v Dallam, 7 H. & J. 220, and Newton v Griffith, 1 H. & G. 111, that this court did not feel themselves at liberty to permit the point to be discussed before them. Tis true Dallam v Dallam, and Newton v Griffith, were cases of devises of [**22]  real estate only, but courts of justice will go much further in supporting executory devises of personal than of real property.
Concurring in opinion with the court below on the several bills of exceptions taken in this cause, we affirm their judgment.
JUDGMENT AFFIRMED.  

7 of 23 DOCUMENTS 

WILLIAMSON vs. DILLON.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

1 H. & G. 444; 1827 Md. LEXIS 28 

June, 1827, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court. Action of covenant, brought by the appellant, (the plaintiff below,) who declared against the appellee, (the defendant,) for a breach of the covenant hereinafter mentioned. The breach assigned was, that the defendant did not deliver 500 barrels of flour to pass 1-3d as fine quality, and the remaining 2-3ds as superfine, lined and in good shipping order; but that on the contrary thereof the said flour when delivered was sour, common, inferior, and of bad quality, and not in good shipping order, and would not and did not, nor did any part thereof pass inspection, as fine or superfine, according to the said covenant; and so, &c. The defendant pleaded performance, on which plea, issue was joined.

1. At the trial the plaintiff offered in evidence the contract executed between the plaintiff and defendant, bearing date on the 5th of January 1817, which here follows: "Zanesville, Ohio. Memorandum of an agreement made and entered into this twenty-fifth day of January 1817, between Moses Dillon, of Zanesville, state of Ohio, and David Williamson of Baltimore, state of Maryland, whereby the said Moses Dillon obligates and binds himself to deliver to the [**2]  said Williamson, or order, at Zanesville, two hundred and fifty barrels of flour, not less than one-third of same flour to pass as fine quality, the remaining two-thirds of superfine, to be at said place by the first day of March next, to be lined and in good shipping order; and to deliver, on the 15th of same month, two hundred and fifty barrels of flour of same quality as the first mentioned quality, and in like order, to the said Williamson, or order, at the above named place, for which flour, on its delivery as above, the said David Williamson, Jr. binds and obligates himself to pay to the said Moses Dillon, or order, the sum of seven dollars per barrel, for which flour payment will be made to the said Dillon with his bonds passed to Luke Tiernan and Kennedy Owen, of Baltimore, interest being added in said bond to the day of the delivery of said flour at the par of exchange. In testimony whereof we have hereunto set our hands and seals this day and year above written.

Moses Dillon, (Seal.)

D. Williamson, Jr. (Seal.)

Signed, sealed and delivered, in the presence of Isaac Dillon."

And also gave in evidence, that the plaintiff was at the time of the making and [**3]  executing of the said contract, a merchant residing in the city of Baltimore, and the defendant was the owner of a mill near Zanesville, in the state of Ohio, and that New-Orleans was the great mart for the flour on the Mississippi, and its tributary waters. And the plaintiff further offered in evidence, that the trade in flour in the neighbourhood of Zanesville was then in its infancy, and that when flour was intended for New-Orleans, it was, according to the course of the flour trade in the Mississippi, and its tributary waters, to inspect flour at New-Orleans, when there was no public inspection of flour at the place where it was loaded in the boats intended to convey it down the river, and that on its passage down the river flour is never taken out of the boat to be inspected before it arrives at New-Orleans, when destined for New-Orleans. And also offered in evidence the depositions of sundry witnesses, and other proceedings taken and had under commissions for that purpose issued out of the said court to certain commissioners of Zanesville, in Muskingum county, in the state of Ohio, and of the city of New-Orleans, in the state of Louisiana. That part of the testimony which seems [**4]  necessary to be stated, (it being admitted by the parties that the said commissions had been regularly executed,) is that of Isaac Dillon, the subscribing witness to the contract, who proved its execution. Also that of Maunsel White, of the city of New-Orleans, in answer to the third interrogatory propounded to him by the plaintiff, who proved "that he was called upon in the spring of the year 1817 by Richard Relf, to state the difference usually allowed on the sale of flour, between superfine, fine, common and middling: that he then stated that the difference was as follows: that two-thirds superfine and one-third fine, was the proportion established as merchantable; that when merchantable flour is worth twelve dollars a barrel, fine is only worth eleven, and middling and common worth eight. That when merchantable flour is worth eight dollars a barrel, fine is only worth seven, and middling and common six, and so in proportion." Also that of "William Ross, of the city of New-Orleans, of full age, being produced, sworn and examined, on the part of the plaintiff in this cause, deposeth as follows: 1. To the first interrogatory on the part of the plaintiff he answers, that he knows neither [**5]  of the parties. 2. To the second interrogatory on the part of the plaintiff he answers, that in May 1817 he inspected a boat load of flour, amounting to four hundred and ninety-nine barrels, said to be from Putnam, in the state of Ohio, brought to the city by captain Tarrier, and consigned to John C. Wederstrandt, Esq. who being absent, the flour was delivered to Richard Relf, Esq. by whom this deponent was called to inspect it. 3. To the third interrogatory on the part of the plaintiff he answers, that the report of the inspection was as follows: Eighty-three barrels fine, three hundred and ninety-nine common, sixteen middling, and one condemned. 4. To the fourth interrogatory on the part of the plaintiff he answers, that the flour, except the condemned barrel, did not appear to have been at all injured in its passage down the river, but its bad quality was owing to its having been badly manufactured. 5. To the fifth interrogatory on the part of the plaintiff he answers, that he was commissioned by James Villere, governor of the state of Louisiana, on the 1st day of January 1816." The defendant then offered in evidence the depositions taken under one of the said commissions at Zanesville;  [**6]  and he also offered in evidence, that in the year 1817 New-Orleans was the principal port to which flour, that passed the falls of the Ohio, was carried, but that it was sometimes sold at other places, when it was discovered that the New-Orleans market was not a favourable one; and that boats employed in the transportation of flour, ultimately destined for New-Orleans, were in the habit of calling at various places on the Ohio and Mississippi, such as Cincinnati, Louisville and Natches, when the owner or agent was on board, for the purpose of trying the market at these several places, and were governed on the further prosecution of their voyage to New-Orleans by the state of the market at the said places. And thereupon the court, upon the prayer of the plaintiff, gave the following instructions and directions to the jury: If the jury believe from the evidence that there was no public inspection of flour at Zanesville, then the plaintiff had a right to take the flour to any port or place on the Ohio or Mississippi rivers, where there was a public inspection of that article, provided in so doing he did not take it to an unusual port or place for the inspection of flour, descending from [**7]  Zanesville; and if they believe the flour was inspected at New-Orleans, that New-Orleans was the great mart for the flour of the country on the Muskingum, and that flour, sold at any port or place on the Muskingum where there was no public inspection, was not usually inspected at any intermediate port between such place and New-Orleans, and that this was generally known to the dealers in flour on said river at the time the contract in this cause was executed, that then the jury might infer that New-Orleans was not an unusual place for the inspection of flour descending from Zanesville. And furthermore, if the jury believe that the flour was not taken to an unusual place for inspection, that the defendant in that event took the risk of inspection; and if it does not at such place pass in quality such as the contract has stipulated, then the plaintiff is entitled to a fair indemnity for the difference in value of the flour as delivered and inspected, and the flour contracted to be delivered. The plaintiff then prayed the opinion and instruction of the court to the jury, that if the jury find from the evidence that New-Orleans was a usual and proper place for the inspection of flour delivered [**8]  at Zanesville, at the time of the delivery of the flour in question; and if they also find that the flour, when inspected at New-Orleans, was of inferior quality, and of less value, as is stated in the deposition of William Ross, the flour inspector at New-Orleans, in one of the commissions herein before mentioned, than the flour contracted to be delivered, that then the measure of damages is the difference in value at New-Orleans, at the time of the inspection, between the flour contracted to be delivered, and the flour in question as passed by the inspector. Which opinion and instruction the Court, [Archer, Ch. J. and Hanson, and Ward, A. J.] refused to give; but instructed the jury, that according to the fair construction of this contract, the proper measure of damages is the difference in value at Zanesville between the flour stipulated to be delivered, and that which was delivered at the time the flour was by the contract to be delivered. The plaintiff excepted.

2. The plaintiff then offered to prove by a competent witness, that at the time of the contract in question, and of the delivery of the flour, and of the inspection at New-Orleans, the market price at New-Orleans [**9]  regulated the price of superfine, fine, and common flour, on the Mississippi and the Ohio, at all the places with which he was acquainted, and also the relative value of such flour; and also that the witness was, at the times above mentioned, well acquainted with the flour trade on the Mississippi and the Ohio, but had not at those times any acquaintance at Zanesville, or with the flour trade on the Muskingum above Marietta; that the witness has no knowledge of the prices or relative value of flour at Zanesville itself, but that at the times above mentioned he was acquainted with the flour trade at Marietta, and up the Ohio to Pittsburg, and there was not the difference throughout that course of more than six cents or 12 1/2 cents per barrel for flour at any of the above places, if it were of the same quality; that at the times above mentioned, flour at Marietta, which would not pass inspection as fine, was of no value for exportation, and was not saleable for that purpose; that Marietta and Zanesville are both situated on the Muskingum river, Marietta at its mouth, and Zanesville about sixty miles higher up; that the price of merchantable flour, at the times above mentioned, at Marietta,  [**10]  was at least six dollars or upwards; and by merchantable flour, the witness means flour two-thirds superfine and one-third fine. The plaintiff offered in evidence, by another competent witness, that in 1817 he resided in the western country at Steubenville, and was acquainted with the prices of flour from Louisville to Pittsburg, and with the relative prices which it bore at different places on the Ohio, but not off the Ohio, and not at Zanesville; but at this time cannot state the prices at any of those places; that the buyers made their purchases, and were regulated in their prices by the prospects at New-Orleans; and that it was the usage in the places above mentioned to settle any damages for deficiency in quality, when the flour was to be inspected in Orleans, by the Orleans prices; that whenever there was no inspection at the place where the flour was put on board the boats, it was usual for the flour to be inspected at Orleans. To the admissibility of which evidence the defendant objected. And the court were of opinion that the same was not admissible to prove the relative value of superfine, fine, and common flour at Zanesville, and was not evidence which the jury were entitled [**11]  to consider in ascertaining the damages which the plaintiff had sustained by the breach of the contract in this case; but that in order to furnish a standard of damages in this case, the plaintiff is bound to prove the value at Zanesville of the flour which the defendant contracted to deliver, and the relative value of that which was delivered at that place at that time; and thereupon refused to suffer the said evidence, or any part thereof, to be given to the jury for the purpose aforesaid. The plaintiff excepted.

3. The plaintiff then prayed the opinion of the court, that in the absence of all proof as to the relative prices of superfine flour, fine flour, and common flour, at Zanesville, or at any other place on the Muskingum river, except Marietta, the jury may, in estimating the damages of the plaintiff in this cause, take into consideration the relative value of the above mentioned qualities of flour at Marietta, it being the nearest point to Zanesville mentioned in the testimony. Which opinion the court refused to give. The plaintiff excepted.

4. Upon the above evidence given as stated in the first bill of exceptions, the plaintiff prayed the opinion of the court,  [**12]  that in the absence of all proof as to the relative value of superfine flour, fine flour, and common flour, at Zanesville, or at any other place on the Muskingum river, except Marietta, the jury may, in estimating the damages of the plaintiff in this cause, take into consideration the relative value of the above mentioned qualities of flour at New-Orleans, with a proper allowance for the expenses and risk of transportation to New-Orleans. Which opinion the court refused to give. The plaintiff excepted.

5. The plaintiff further offered in evidence by a witness, that he purchased flour at Zanesville in the spring of 1817, and paid for it from six to eight dollars per barrel; and that the witness, at the time above mentioned, was engaged in shipping flour from the waters of the Mississippi and Ohio, and is acquainted with the flour trade in those waters; and that in the opinion of the witness, no merchant acquainted with the said trade would purchase for exportation at Zanesville, flour that would not pass inspection as merchantable flour, provided he knew it would not pass. That the witness paid for the freight of flour from Zanesville to New-Orleans two dollars per barrel; that [**13]  the witness was not in the Western Country in the spring of the year 1817, and did not make the purchases he has mentioned, in person, but that some of the said purchases were made by the partner of the witness, and that some of them were made by his brother, as agent for the mercantile house of which the witness then was a partner, and that all the information of the witness of the facts of the purchases which he has mentioned is derived from his said partner and brother, who are both living; but that the witness knows that his house paid for the flour above mentioned, and for other flour purchased at other places on the Western waters, at the prices above mentioned, and which prices were stated to him by his said partner and brother as being the prices which they had contracted to give for the said flour. The defendant objected to the admissibility of the said evidence. And the court were of opinion, that the said evidence was not admissible to prove the relative value at Zanesville of superfine, fine, and common flour, and was not evidence which the jury were entitled to consider in ascertaining the damages which the plaintiff had sustained by the breach of the contract in this [**14]  case; but that in order to furnish a standard of damages in this case, the plaintiff is bound to prove the value at Zanesville of the flour which the defendant contracted to deliver, and the relative value of that which was delivered at that place at that time; and thereupon refused to suffer the said evidence, or any part thereof, to be given to the jury for the purpose aforesaid. The plaintiff excepted.

6. The plaintiff then offered to read in evidence that part of the deposition of Maunsel White, which is contained in his answer to the third interrogatory. To the admissibility of which evidence the defendant objected. And the court were of opinion that the said statement contained in the said answer was inadmissible evidence, and refused to let the same go to the jury. The plaintiff excepted.

7. The plaintiff then, in addition to the evidence above stated, offered to prove by a competent witness, that the witness purchased flour on the Mississippi in the spring of 1817; that the said flour was sold in New-Orleans in the spring of that year; that part of the said flour was part superfine, and part common; that the difference in price between superfine and fine was one dollar [**15]  per barrel, and the difference between superfine and common was four dollars per barrel; that witness was not in New-Orleans himself at the time when the sales were made; he knows that his house received payment for flour sold in New-Orleans, at the relative prices above mentioned, at the time above stated; that the said sales were made by the partner of the witness, and the accounts were rendered of the sales in the manner and at the prices above stated; that the witness had no personal agency in making either the said sales or purchases, or any of them, having himself been residing all along in Baltimore, and that the above statement is made entirely on the information of his partner, and the agents of the house who resided in New-Orleans, and transacted the business, his said partner being still living. The said sales were made by agents of the house under the immediate direction of the partner of the witness, as he was informed by his said partner, and the accounts of which witness speaks, were rendered by such agents, and received by the witness from his said partner. To the admissibility of which testimony the defendant objected. And the court were of opinion, that the said testimony [**16]  was inadmissible, and refused to suffer the same, or any part thereof, to go to the jury. The plaintiff excepted.

8. The plaintiff further offered to prove by a competent witness, that the witness was in New-Orleans in May 1817, and had orders to purchase flour; that the price of superfine flour at that time was $ 13; that he does not know the comparative value of fine and superfine flour. In the market of Baltimore the difference between fine and superfine is half a dollar. That fine and common flour is inferior in value generally to superfine, but that the witness made no inquiries at Orleans in relation to fine or common, and cannot therefore speak of the relative value of those qualities of flour at New-Orleans. The plaintiff further offered to prove by another competent witness, that he resided in New-Orleans, and did business there as a commission merchant from 1806 to 1811; that he was, during that time, in the practice of selling a good deal of flour, and was well acquainted with the New-Orleans market for flour, and the usage of that market at that time, and with the course of trade. That the flour, of which he speaks, was the flour which came down the Mississippi; that [**17]  during the time above mentioned the difference in value between superfine flour and common flour was as follows: that is to say, that when superfine was eleven and twelve dollars, common flour would be about nine dollars per barrel, and so in proportion, the difference being greater when flour was higher, and less when flour was lower; that the smallest difference the witness ever knew between superfine flour and common flour in the New-Orleans market was three dollars, and the difference between fine and superfine was about one and one half dollars per barrel, when the price was such as is above mentioned, and that difference increased and diminished according to the price of flour in the rates above mentioned; fine flour is inferior in value to superfine flour, and common flour inferior in value to fine flour. It was generally difficult to sell fine or common flour in the market at Orleans, but superfine flour had generally a ready sale. That witness had not been at New-Orleans since May 1811, and has no personal knowledge of the prices of flour, or the usages of trade since that period of time; that they could always obtain for flour of the Baltimore brand two or three dollare more [**18]  than for flour brought down the Mississippi from the Western Country, and would always sell superfine flour for something, when fine and common flour could not be disposed of. And also offered to prove by another competent witness, that the said witness resided in New-Orleans in 1819, and was a clerk in a mercantile house at that place; that the price of merchantable flour was at that time $ 8 per barrel, and that merchantable flour, so called in the market of New-Orleans, were one third fine and two thirds superfine; that the prices of flour during the months of November and December 1819, and January and February 1820, were at $ 8 per barrel, and that prices fluctuated during the residue of 1819 from 50 cents to a dollar; that at the time above mentioned, flour which passed inspection at New-Orleans as common only, was of less value, and was worth in New-Orleans only five and a half dollars per barrel, when merchantable flour was worth $ 8 per barrel. Witness lived there from 1819 to 1822; that while the witness resided there flour which passed inspection as common flour was always inferior in value to merchantable flour as above described, and that when flour was high the difference [**19]  was greater, and when lower the difference was less. And also offered in evidence by another witness, that the witness resided at Zanesville from 1811 to 1817, and left Zanesville on the 20th of April 1817; that when he left Zanesville he was between 14 and 15 years of age, and the fall before he left there he was employed by several persons, in conjunction with two others, to make an enumeration of the inhabitants of the town of Zanesville. The flour from Zanesville was generally sent to the New-Orleans market, but was sometimes sold on the way, where a market offered, as at Cincinnati, Louisville, or other places. There was no public inspection for flour at Zanesville before or at the time when the witness left there. That at the time they were making the enumeration as above mentioned, they endeavoured to ascertain the amount of flour dispatched from Zanesville, and the witness made inquiries on that subject, but he was unable to ascertain it, and gave it up. That the father of this deponent was a physician, and in the habit of receiving wheat from his patients, which he somestimes sold to millers, sometimes had it ground into flour, and sometimes bartered the wheat or flour for [**20]  such articles as he wanted; that there was very little money in the country, but flour generally had a ready sale for cash, because it was one of the articles usually sent to market to New-Orleans; but has no knowledge of any particular sale of flour having been made at Zanesville, and speaks only of what he generally understood to be the course of business in relation to flour, and as to what he has already stated in relation to the general destination of flour to New-Orleans. He has no personal knowledge on the subject, and no other knowledge than what he derived from the information of others, and from seeing boats frequently depart from Zanesville, which he understood from the boatmen, when he saw them taking their departure, to be destined for Orleans, and also from what he generally understood at Zanesville to be the course of the trade. He had frequent conversations with boatmen who were engaged in the trade on the river, and also had conversations with the young men who were employed to superintend the sale of flour, and his information as to the course of the trade, as above stated, is derived from these sources. To the admissibility of all which testimony, so far as the same [**21]  refers or relates to the relative value of flour at New-Orleans, or so far as the same refers or relates to the relative value of the different qualities of flour at any place on the Ohio, other than at Zanesville, the defendant objected. Of which opinion was the court, and refused to let the said evidence go to the jury so far as above objected to. Whereupon the plaintiff prayed the court to designate the particular sentences, passages, and parts of the testimony above stated, which were admitted and rejected. Which the court refused to do further or more particularly than is done in the above stated objection and opinion. To which opinion of the court, as stated in this exception, the plaintiff excepted.

9. After the plaintiff had closed the evidence in support of the issue on his side, all which is set forth in the several preceding bills of exceptions taken on the part of the plaintiff, the defendant prayed the instruction of the court to the jury, that to enable the plaintiff to support his action in this case, it is necessary that he should prove, by competent evidence, the comparative value at Zanesville of the flour contracted to be delivered, and of that which was actually [**22]  delivered at the time specified in the covenant; that the difference between these values constitutes at once the proof of damage, and the measure of that damage; that the plaintiff has offered no proof of such comparative value, and that in the absence of all evidence of that comparative value, the plaintiff is not entitled to a verdict in this case. Which opinion and direction the court 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:

On the 25th of January 1817, D agreed with W, under seal, to deliver to him or order at Z, 250 barrels of flour, not less than 1-3d of which to pass as fine quality, the remaining 2-3ds of superfine, to be at said place by the 1st of March then next, to be lined and in good shipping order; and to deliver on the 15th of the same month 250 barrels of flour of same quality as the first mentioned quality, and in like order, to W, or order, at the above named place; for which flour, on its delivery as above, W bound himself to pay, &c. In an action of covenant on this contract the breach assigned being that the flour when delivered was sour, common, inferior, and of bad quality, and not in good shipping order, and would not and did not pass inspection as fine or superfine.     Held, that the inspection was no part of the contract, as it related to the time and place of delivery, but only the evidence or test by which it was agreed the quality of the flour should be ascertained; that the moment the stipulated time for the delivery of the flour had passed, the contract was either performed or broken, and it was only necessary to carry it to a place for inspection, to furnish evidence of its quality; and that the difference of price at Z, at the time stipulated for its delivery, between the flour delivered and that contracted for, was the true measure of the plaintiff's damages in this case.

In an action on an agreement to deliver a specific article, at a particular time and place, to be paid for at the time of the delivery, the measure of damages is the same, whether brought for a nondelivery, or a delivery of a different quality from that contracted for. The value of such article at the time and place of delivery, is the true measure; unless where the contract showed it was for a particular purpose, and special damages were laid in the declaration.

In proving the relative prices of different qualities of flour at Z, in 1817, other testimony is admissible than direct positive proof from a witness who knew the value at that place; in the absence of such positive proof the jury may infer such value, from proof of the price of each kind of flour in 1817, at other places in the neighbourhood of Z, and at N O, a port to which flour was commonly sent from Z, for inspection and sale; and this latter species of evidence, which is admissible for the above purpose, is not secondary, though of a less conclusive character than direct proof.

Where it was doubtful, from the want of care in drawing a bill of exceptions, whether the whole testimony of a witness was hearsay, part of it being unquestionably so, the appellate court made a comparison of the several parts of the testimony, and determined the whole to be hearsay, and therefore incompetent.

Information received by one partner, the witness, from his copartner, of the price of merchandize purchased by him at Z, for which the witness knew that his house at B, where he resided, paid at the price mentioned, is but hearsay evidence of the price of such merchandize at Z.

Where a witness in his answer taken under a commission declared, "that he was called on in the spring of the year 1817, to state the difference usually allowed on the sale of flour between superfine, fine, &c. that he then stated the difference was as follows," &c.--Held, that this might be true, and yet the witness have no knowledge of the facts; his declaration being, that he made the statement, and not that it was true. Such testimony is not admissible in evidence.  

COUNSEL:
Scott, for the Appellant, contended, 1. That the court below erred in not granting the second prayer contained in the first bill of exceptions; because the measure of damages was the difference of value at New-Orleans, at the time of the inspection, between the kind of flour contracted to be delivered, and the flour actually delivered as passed by the inspector of flour at New-Orleans.

2. That even if the court were right in refusing the second prayer contained in the first bill of exceptions; yet they erred in rejecting the evidence contained in the second bill of exceptions, and in the opinion therein expressed; because the evidence [**23]  contained in the second bill of exceptions was competent testimony to go to the jury, to prove the difference in value at Zanesville, between the flour stipulated to be delivered, and that which was delivered, at the time the flour was by the contract to have been delivered.

3. That the court below erred in not giving the opinion and direction prayed for by the plaintiff, as set forth in the third bill of exceptions; because, in the absence of all proof of the relative prices of superfine, fine, and common flour, at Zanesville, or at any other place on the Muskingum river, except at Marietta, the jury ought to have been permitted to take into consideration the relative value of the above mentioned qualities of flour at Marietta, it being the nearest point to Zanesville mentioned in the evidence.

4. That the court below erred in not giving the opinion prayed for by the plaintiff, as is set forth in the fourth bill of exceptions; because, in the absence of all proof of the relative value of superfine, fine, and common flour, at Zanesville, or at any other place on the Muskingum river, except at Marietta, the jury ought to have been permitted to take into consideration the relative [**24]  value of the above mentioned qualities of flour at New-Orleans, with a proper allowance for the expences and risk of transportation. New-Orleans being a suitable and proper place for the inspection of the said flour.

5. That the court below erred in refusing to permit the evidence contained in the fifth bill of exceptions to go to the jury; because the evidence therein set forth was competent evidence to go to the jury, for the purpose of showing the value of superfine, fine, and common flour, at Zanesville, in 1817, at the time of the delivery of the flour mentioned in the first bill of exceptions; and that the kind of flour actually delivered was of no value for exportation.

6. That the court erred in refusing to permit the answer of Maunsel White to the plaintiff's third interrogatory to go to the jury, and in the opinion expressed in the sixth bill of exceptions; because the said answer was competent evidence to go to the jury, to show the difference in value between superfine, fine, common flour, and middling, at New-Orleans, in the spring of the year 1817.

7. That the court erred in refusing to permit the evidence contained in the seventh bill of exceptions from [**25]  going to the jury; because the said evidence was competent testimony to go to the jury, to show the difference in value between superfine, fine, and common flour, at New-Orleans, in the spring of the year 1817.

8. That the court erred in rejecting the evidence contained in the eighth bill of exceptions, or any part thereof, and in refusing to designate the particular sentences, passages, and parts of the testimony, contained in this bill of exceptions, which were inadmissible; because the whole of the said evidence was competent to go to the jury--1st. For the purpose of showing the relative value of superfine, fine, and common flour, at New-Orleans, in the spring of the year 1817. 2d. For the purpose of showing its value at Zanesville. 3d. For the purpose of showing that there was no flour inspection at Zanesville in 1817. And lastly. For the purpose of showing the state of the flour trade on the Mississippi, and its tributary waters, in the year 1817.

9. That the court erred in granting the prayer and direction contained in the ninth bill of exceptions. 1st. Because it was not necessary that the plaintiff should prove the comparative value at Zanesville of the flour contracted [**26]  to be delivered, and of that which was actually delivered at the time specified in the covenant. 2d. Because the difference in value at New-Orleans, at the time of the inspection, between the flour actually delivered, and that contracted to be delivered, constitutes the measure of damages sustained by the plaintiff, and not the difference between the relative values at Zanesville. 3d. Because the plaintiff did offer evidence of such relative value at Zanesville, as well as at New-Orleans. 4th. Because even in the absence of all evidence of that comparative value, the court should have left the issue made up between the parties to the jury, whose particular province it was to decide whether the defendant had fulfilled and performed his contract. 5th. Because there was a contrariety of evidence as to the quality of the flour. 6th. Because if the jury were not satisfied from the evidence that the flour actually delivered was such flour as the plaintiff was entitled to under the agreement, although there might have been an absence of proof by which the measure of damages could have been ascertained; yet that the plaintiff would have been at least entitled to nominal damages. 7th. Because [**27]  the burthen of proof was with the defendant to show that he had kept and fulfilled his covenant. 8th. Because the evidence shows that the flour actually delivered did not pass inspection according to the stipulation contained in the contract.

On the first bill of exceptions, as to the construction of the contract, he cited 2 Bac. Ab. tit. Covenant, (F) 76. 3 Com. Dig. tit. Covenant, (D 1,) 262. 1 Phill. Evid. 416. 1 Pow. on Cont. 385. 2 Com. on Cont. 532. Harper vs Hampton, 1 Harr. & Johns. 672. De Sobry vs De Laistre, 2 Harr. & Johns. 228. As to the measure of damages to be allowed for the nonfulfilment of the contract, he cited Cannell vs M'Clean, 6 Harr. & Johns. 297. Downes vs Back, 2 Serg. & Low. 407. Bridge vs Wain, Ib. 486. Bracket vs M'Nair, 14 Johns. Rep. 170. Amory vs M'Greggor, 15 Johns. Rep. 24.

On the ninth bill of exceptions, he cited Douglass vs M'Allister, 3 Cranch, 298. Hurstford vs Wright, 1 Day's Rep. 3. Davis vs Davis, 7 Harr. & Johns. 36. Morris vs Brickley & Caldwell, (ante 107.) Stanard vs Eldridge, 16 Johns. Rep. 254.

On the second, fifth, and seventh bills of exceptions, he cited 1 Phill. Evid. 209, (227,) ch. 8. Ib. 167, ch. 7, s. 6. 2 Phill.  [**28]  Evid. 45. 1 Stark. Evid. 398, 399, 400.

On the eighth bill of exceptions, he cited 3 Stark. Evid. 1252.

Meredith, for the Appellee. It is contended by the appellee, that he has kept his covenant, and performed the contract. He does not hold himself bound by the construction given by the court to the contract, as stated in the first bill of exceptions. That the contract, if it looks to an inspection at all of the flour, it was that it should be inspected at Zanesville; and if no public inspection there, then there was to be a private inspection. It never was intended that the flour was to be sent to New-Orleans at the risk of the appellee For the purpose of this argument, however, it must be admitted by the appellee, that the court below gave a proper construction to the contract. The whole case before this court is, what was the proper measure of damages. The contract is a written one, and it must be construed by the court. The measure of damages is legally incorporated into every contract; and the rule given by the court below, as to the measure of damages, was the proper rule. The defendant did not subject himself to the fluctuations of a foreign market. He stipulated to [**29]  deliver the flour at Zanesville, and there he did deliver it. If he had failed altogether to deliver the flour, what would have been the measure of damages? Not what would be the price at New-Orleans, or any foreign market, to which the plaintiff might have intended to ship it; but the standard of value would be fixed at Zanesville at the time when the contract was to be consummated. Chipman on Contracts, 121, and the cases there referred to. Shepherd vs Hampton, 3 Wheat. 200. Gainsford vs Carroll, 9 Serg. & Low. 204. Leigh vs Paterson, 8 Taunt. 540, (4 Serg. & Low. 204.) 2 Stark. Evid. 645, 646. Gilpins vs Consequa, 1 Peters' C. C. Rep. 94. Willings & Francis vs Consequa, Ib. 172. Smith vs Richardson, 3 Caine's Rep. 219. But it has been said that the contract was not completed until after the flour was inspected at New-Orleans. The contract stipulates that the flour should be delivered at Zanesville; and it was delivered there to the plaintiff, who sent it to New-Orleans. Suppose the flour had been lost in its transportation, would the defendant be bound to supply other flour of the same or any other quality? If the measure of damage was the value of the flour at Zanesville, then [**30]  the plaintiff should have produced evidence of what was the value at Zanesville. This he did not do; although such evidence might have been obtained. No evidence short of that required could be received.

If there ought to have been nominal damages in this case, this court, under the act of 1809, ch. 153, are authorised to amend the proceedings so as to give nominal damages.

Taney, in reply. The construction given by the court below to this contract on the first prayer of the plaintiff, is the true one. We must take it with its consequences. The contract was to deliver flour which should pass inspection, 1-3d fine, 2-3ds superfine. These latter terms imply a public inspection, for private opinion could not pass the flour, as either fine or superfine. The purport of an inspection is to give an article a fixed character. The value of the flour was to be so fixed in the market by the intent and contract of the parties. The inspection was to influence the market value. This quality of fine and superfine to be fixed by inspection, was to be attached to the flour at New-Orleans, the only place for inspection; and was to be conclusive between the parties. We admit that the time and [**31]  place of the breach, the difference in value then and there, will furnish the measure of damages. Dillon warrants the flour shall pass, and therefore he covenanted that Williamson might take the flour to Orleans, the usual place of inspection, where of course it was to pass. His, D's, covenant is of that extent. The flour does not pass; that is a breach of the covenant, not of delivery; but that it would pass inspection at Orleans. The time of the breach then, is the time of the inspection; the place, is the place of the intended inspection, and that was Orleans. It is a mistake to confine the breach to the mere delivery of uninspected barrels. We claim our damages, therefore, for the injury sustained at Orleans at the time of the inspection and discovery that our contract had been violated. Neither would it be correct to apply to the breach arising from a failure to pass inspection, the same measure of damages as for a nondelivery. In the latter case the purchaser, not having parted with his money, can replace the article, and the difference of price, at the place of delivery, would fully remunerate him. To this last case a failure to deliver stock sold to be delivered at a future [**32]  day, is analogous; but the true measure of damages in this case is the equity which the purchaser has to reimbursement under its peculiar circumstances. Bridge vs Wain, 2 Serg. & Low. 486. 1 Stark. Evid 504.

The sufficiency of the evidence alone was for the consideration of the court; all the bills of exceptions might have constituted one. There is no one prayer as to the sufficiency of the evidence; but they all go as to the admissibility of the evidence. It is clear that the plaintiff could give, and that he did give evidence that the price of flour on the river was regulated by the price at New-Orleans, and he proved the relative value at each place, except at Zanesville. The evidence was certainly admissible, but whether sufficient or not, was another question, and which was for the jury to decide.

On the eighth bill of exceptions, he cited 1 Stark. Evid. 395. 3 Stark. Evid. 1244, 1245.

On the ninth bill of exceptions. Where there is a breach of the covenant by the defendant, there must be a verdict for nominal damages at least. The act of 1809, ch. 153, cannot authorise this court to amend the judgment. The judgment is for the defendant, and it may be amended so [**33]  as to support that judgment; but by amending it by giving nominal damages to the plaintiff, would be to reverse the judgment.  

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

OPINIONBY:
MARTIN 

OPINION:

 [*462]  MARTIN, J. delivered the opinion of the court. This was an action instituted to recover damages for the nonperformance of a covenant entered into between the parties on the 25th of January 1817, in the following words, (and which was signed and sealed by them:)--"Memorandum of an agreement entered into on this 25th day of January 1817, between Moses Dillon, of Zanesville, state of Ohio, and David Williamson of Baltimore, state of Maryland, whereby the said Moses Dillon obligates and binds himself to deliver to the said Williamson, or order, at Zanesville, two hundred and fifty barrels of flour, not less than one-third of same flour to pass as fine quality, the remaining two-thirds of superfine, to be at said place by the first day of March next, to be lined and in good shipping order; and to deliver on the 15th of same month, two hundred and fifty barrels of [**34]  flour of same quality as the first mentioned quality, and in like order, to the said Williamson, or order, at the above named place, for which flour, on its delivery as above, the said David Williamson, Jr. binds and obligates himself to pay to the said Moses Dillon, or order, the sum of seven dollars per barrel, for which flour payment will be made to the said Dillon with his bonds passed to Luke Tiernan and Kennedy Owen, of Baltimore, interest being added in said bond to the day of the delivery of said flour, at the par of exchange. In testimony," &c.
In the trial of this cause, many exceptions were taken to opinions given by the court below; and without following the regular order, in which they appear, we will decide the points 

 [*463]  that arise in them, and then apply the law to each exception respectively.
The true construction of this contract is the first question to be examined.
That the intention of the parties making a contract is to be regarded, and when practicable, carried into effect, is a fundamental rule in the construction of contracts. Where the agreement is in writing, and an ambiguity appears, not on the face of the [**35]  paper, you may have recourse to extrinsic evidence to aid in its construction; but where its language is clear and explicit, the instrument must be construed according to its plain import and terms. In this case we see no ambiguity, and we think the agreement, on the face of it, clearly points out the intention of the parties contracting
The contract is for the delivery of a certain quantity of flour, of a particular quality; to be delivered--where? The contract expressly states, at Zanesville. When was it to be delivered? It is equally explicit that the first 250 barrels were to be delivered on the 1st of March 1817, and the remainder on the 15th of the same month, and Williamson stipulated that he would pay for the said flour seven dollars a barrel, on its delivery as aforesaid. But the flour, thus to be delivered on the 1st and 15th of March at Zanesville, was to be of a particular quality, and the agreement points out the evidence by which the quality shall be ascertained; it shall be such flour as will pass inspection, &c. The inspection was no part of the contract, as it related to the time or place of delivery, but only the evidence or test by [**36]  which it was agreed the quality of the flour should be ascertained. Suppose on the day after the flour was delivered, Williamson, under an impression that it was not of such quality as was specified in the contract, had instituted a suit against Dillon, can it be doubted that such suit could be sustained, although the flour had not then been inspected, if afterwards, upon inspection, it would not pass? The moment the stipulated time for the delivery of the flour had passed, the contract was either performed or broken, and it was only necessary to carry it to New-Orleans, or any other place, for inspection, to furnish evidence of its quality.
With this explanation of the contract we are next to enquire 

 [*464]  at what time and place the price of flour was to be the measure of damages; and with this view, it is necessary to consider, not only what the contract is, but what it is not. It is not a contract for the delivery of stock, and therefore the case of Downes vs Back, 2 Serg. & Lowb. 407, and the case of M'Arthur vs Lord Seaforth, 2 Taunt. (Eng.) 257, do not apply to it. By this contract the price was to be paid when the flour [**37]  was delivered. It is not for affireightment, and, therefore, not within the doctrine laid down in Bracket vs M'Nair, 14 Johns. 170, and Amory vs M'Greggor, 15 Johns. 24, even if the authority of those cases had never been questioned; nor is it a contract for the sale and delivery of articles where no time or place is specified for the delivery, as in Bridge vs Wain, 2 Serg. & Lowb. 486. These are cases decided upon principles not applicable to the one now before us, and we look in vain to them to aid us in forming a correct opinion in this case.
It is believed that no case can be found where there was an agreement to deliver a specific article at a particular time and place, and the money to be paid at the time of delivery, that the value of that article, at the time and place of delivery, was not considered the measure of damages, unless where the contract showed it was for a particular purpose, and special damages were laid in the declaration. In Chipman on Contracts, 121, it is stated, "If property be sold at a particular price, to be delivered at a future day, and in the meantime the property rise, the purchaser [**38]  is entitled to the rise of property; and if the property be not delivered, the value of the property, at the time and place of delivery, is the measure of damages." And in Shepherd vs Hampton, 3 Wheat. 200, "It was the unanimous opinion of the court, that the price of the article, at the time it was to be delivered, is the measure of damages." See also the case of Leigh vs Patterson, 4 Serg. & Lowb. 204. Gainsford vs Carroll and others, 9 Serg. & Lowb. 204, and Cannell vs M'Clean, 6 H. & J. 297.
The same rule, we think, will apply, where the damages are claimed, not for the nondelivery of the article, but for the delivery of an article of a different quality from that contracted to be delivered. The difference of price, at the time and place 

 [*465]  stipulated for the delivery between the article delivered and that contracted for, is the measure of damages.
The case of Gilpins vs Consequa, 1 Pet. C.C. 85, 86, sustains this position. That was an action brought to recover damages for the nondelivery of teas, of the quality contracted to be delivered, by Consequa, the defendant, to the supercargo [**39]  of Gilpins. Consequa stipulated to deliver at Canton a cargo of tea for the Pennsylvania Packet, to be fresh, prime, and of the first chop. The tea was delivered, and carried first to Philadelphia, and afterwards to Amsterdam, where it was sold at public sale, according to the usage. From a comparison of the sales, it appeared these teas sold for less than some other teas of the same kind, which was attributed to their being of inferior quality. Judge Washington charged the jury, that as the contract was to deliver teas at Canton of a certain quality, they would consider the sales at Amsterdam, and the comparison of them with those of other teas, not as furnishing the amount, but the rate of loss; and having ascertained the rate, to apply it to the prices of the same articles of first quality at Canton, when these teas were delivered. And the learned judge, in illustration of this doctrine, stated--"If a man contract to deliver a quantity of flour, for instance, by a particular day, and fails, or deliver it of a quality inferior to that stipulated for, all that can be claimed from him in the first case, is the price of such flour [**40]  at the time and place when and where it was to be delivered; or in the second, to make up the difference in quality." In the case of Willings & Francis vs Consequa, 1 Pet. C.C. 172, 176, the doctrine laid down in the first case is recognized and adopted. Speaking of the rule in Gilpins vs Consequa, the Judge says, "with this rule the court finds no cause to be dissatisfied; and the reason of it is obvious, the contract is to deliver teas of the best quality at Canton; if it be not complied with, the price of such teas, at that place, is the just measure of the damage sustained by the plaintiff."
But it is thought this rule, to ascertain the damages, will not afford to the plaintiff ample justice; he ought also to recover the amount of expenses necessarily incurred in transporting the flour to New-Orleans for inspection. The answer is, such was not the contract. If that had been a stipulation between the 

 [*466]  parties, it should be found in the agreement. In its absence, this court can only act upon the contract as they find it, and apply to such contract the general established principles of law.
The next question is, whether the testimony offered [**41]  by the plaintiff was admissible for that purpose?
Through the whole trial of this cause, the court of Baltimore county seems to have acted under the impression that no testimony was admissible to prove the relative price of flour at Zanesville, unless it was direct, positive proof, from a witness, who knew the value at that place; and that in the absence of such positive proof, the jury could not be permitted to establish that fact, by any other testimony. In this, we think the court erred. The evidence offered is not, as was contended, secondary evidence. It is of the same grade with that required by the court, although perhaps of a less conclusive character. Where testimony is offered, which of itself shows there is other evidence of a higher character, it is secondary evidence; as in the case of a written agreement--the copy is not admissible, until your first show the original cannot be had; because the copy of itself clearly proves, there is evidence of a higher character, which ought to be produced, unless its absence is accounted for. Not so, where the testimony is of the same grade, although it may not have an equal effect with the jury. The object to be attained [**42]  in this case, was the relative value of flour at Zanesville, between that delivered, and that contracted for; and this might be proved either by a witness who knew the price of each kind of flour at Zanesville, or by showing the value at different places, by which the jury could judge of its relative value at Zanesville. The testimony, therefore, offered by the plaintiff, of the price of each kind of flour at New-Orleans, Marietta, and other places, was admissible, and ought to have been given to the jury.
The evidence offered in the fifth bill of exceptions was hearsay, and, therefore, properly rejected by the court. Some difficulty arises in forming a decision on this exception from the want of care in taking down the evidence. The witness, after stating that "he had purchased flour at Zanesville in the spring of 1817, and paid for it from six to eight dollars a barrel, and that he had paid for the freight of flour from Zanesville to 

 [*467]  New-Orleans two dollars per barrel," said, that all the information he had as to the purchases and prices was derived from his brother and partner; but it is not distinctly mentioned whether the prices spoken [**43]  of related to the price of flour alone, or was intended to include the price of both flour and freight from Zanesville to New-Orleans. From a comparison of the several parts of the testimony, we are led to the conclusion, that his knowledge of both was derived from the same source. He was not in the Western Country in the spring of 1817, nor did he make the purchases himself, but the whole business was transacted by his brother and partner.
The court were also right in not receiving the testimony in the sixth bill of exceptions. Maunsel White, the witness, stated, "that he was called on in the spring of the year 1817, by Richard Relf, to state the difference usually allowed on the sale of flour between superfine, fine, common and middling; that he then stated the difference was as follows," &c. This might be true, and yet he might have no knowledge of the facts. He only swears he made the statement to Relf, but he does not swear that statement was true, or that he either then knew, or ever did know, the facts to be as he stated them to Relf.
The testimony offered in the seventh bill of exceptions was hearsay, and, therefore, liable to the [**44]  same objection with that contained in the fifth.
That part of the evidence in the eighth bill of exceptions that relates to the price of flour in New-Orleans in 1817, and that which was offered to prove there was no public inspection at Zanesville, at or before the time mentioned, ought to have been received; the residue of the testimony mentioned was properly rejected. The price of flour in 1811 and 1819, could not afford a correct standard to show its value in 1817.
We concur in the opinions given by the court below, in the first, fifth, sixth, and seventh bills of exceptions, and dissent from those in the second, third, fourth, eighth, and ninth bills of exceptions.
DORSEY, J. dissented from the opinions of the court below in the first, third, and fifth bills of exceptions.
JUDGMENT REVERSED, AND PROCEDENDO AWARDED.  

8 of 23 DOCUMENTS 

CAPPEAU'S Bail vs. MIDDLETON & BAKER.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

1 H. & G. 154; 1827 Md. LEXIS 7 

June, 1827, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court. On the 8th of May 1818 a writ of scire facias issued out of Baltimore county court, on a recognizance of special bail entered into in the usual form in that court at September term 1816, by Joseph Cappeau, (the appellant,) for Charles Cappeau, at the suit of Middleton and Baker, (the appellees,) in a plea of trespass on the case, &c. by the said Middleton and Baker against the said Charles Cappeau, in the same court prosecuted, &c. The writ of scire facias then stated, that in the said court in September 1817, Middleton and Baker recovered judgment against Charles Cappeau for the sum of, &c. Nevertheless the said C. Cappeau the damages, &c. to the said Middleton and Baker had not satisfied, nor his body in execution of such judgment to the public prison of the said county had rendered, &c. Wherefore the said Middleton and Baker had besought a proper remedy, &c. Command was therefore given to the sheriff to give notice to Joseph Cappeau, in the usual form of such writs of scire facias. The defendant, (the special bail,) appeared, and pleaded, (after praying oyer of the writ of scire facias,) 1. Nul tiel record of recognizance. 2. That before the [**2]  suing out of the writ of scire facias, and before the return of any writ of capias ad satisfaciendum issued on the said judgment against the said Charles Cappeau, to wit, on, &c. the said Charles died, to wit, at Saint Domingo, &c. To the first plea the plaintiffs replied habetur tale recordum of recognizance, and issue was joined to the court upon the record. To the second plea the plaintiffs replied, that Charles Cappeau did not die before the return of the writ of capias ad satisfaciendum issued against him upon the said judgment; and tendered an issue to the country, which was joined in by the defendant. Upon the first issue, the county court gave judgment for the plaintiffs, that there was such record, &c.

At the trial of the issue joined on the second plea, the defendant offered in evidence a commission issued out of Baltimore county court, in the usual form, to Robert Lavens and Pelegrin Vidal of Mayaguez, commissioners, for taking the testimony of witnesses in the said action, by them or either of them, &c. Also the translations, (made by consent of the parties,) of certain depositions in the Spanish language, returned with the said commission. It appeared by the return [**3]  of Robert Lavens, the commissioner who acted, that he addressed a request to the governor, judge or the proper officer of the place, to cause the commission, which was in English, to be translated into the Spanish language by the public interpreter of the town of Yagues, where the commissioner resided. This was complied with. The commissioner then addressed another request to the same person, in which, stating himself to be commissioner, &c. he requested that he would be pleased to admit a declaration of witnesses, and to bind under oath those whom he the commissioner should present, to answer certain interrogatories which might be propounded according to the usual form. He then set forth the interrogatories. And that these being done, to let a testimony of these proceedings, corroborated by the signature of two or three notaries public, be drawn, &c. This request was granted, with directions, that all the witnesses presented swear and declare according to the form and manner requested, &c. It was then stated that in the town of Mayaguez, on the 2d of August 1824. "the party requesting the declaration, presented as a witness, Joseph Lenner, a resident of this place. The Alcade took [**4]  his oath before me, which he performed according to law, and under which promised to tell the truth in every thing which he would be interrogated; and being requested to answer the preceding interrogatories; to the first, he said," &c. "He signed it with the Alcade, before me. I attest, Arroyo. (Signed) Aldiexi. (Signed) Lenner. Before me, (signed) Peter Arroyo, Notary Public." "On the same day I notified, and delivered these proceedings to the party concerned, which I attested. Signed Arroyo." The testimony of another witness was taken in a similar manner. The commissioner who acted, then certified to Baltimore county court, that P. Vidal and himself, being charged and named as commissioners, having to take an oath prescribed in the commission, before a person authorised to administer the same, presented themselves to the proper authority for that purpose, and were informed that it was impossible to act extra-judicially in this case, so as to effect the commission according to the tenor of the oath. That before they could cite any witness in this case, it was necessary to make a representation to the judge for permission to have their power translated by a public interpreter, by which [**5]  he could be instructed with the nature of the commission and according to law execute the same. That had they, or either of them, being charged simply to take information from persons acquainted in the affairs, it might have been fully and satisfactorily executed; but to have an oath, prescribed by the laws of a court in a foreign country, to be administered and subscribed to by a person in another, was a thing that the judge of that place did not, nor would not understand, though the commissioners explained to him the nature of the commission, and said he would not cite the witnesses, who lived at a distance, except it was notarially and publicly done, &c. The plaintiffs objected to the admission of the said evidence; and insisted that the said depositions ought not to be read in evidence. And the Court [Archer Ch. J. and Ward, A. J.] were of opinion that the said depositions ought not to be admitted in evidence. The defendant excepted; and the verdict and judgment being against him, he appealed to this court.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

A writ of scire facias against special bail, which does not recite the issue and return of a ca. sa. is sufficient upon issue joined on the plea of nul tiel record.

To such writ, the bail having pleaded the death of his principal before any ca. sa. returned, the plaintiff in his replication traversed that fact, and tendered an issue to the country. Its conclusion was technically right; an issue joined on such pleadings, is not an immaterial one, the whole matter in controversy being decided by it.

The omission of the plaintiff in his replication to set out the ca. sa. and return, in proceedings against bail, is mere informality in pleading, bad only on demurrer, and cured by verdict.

The power conferred on a commissioner to take testimony is strictly personal. Especial confidence is presumed to be reposed in the person appointed, and he cannot delegate his authority.  

COUNSEL:
Scott, for the Appellant, contended, 1. That it did not appear by the record, that a writ of capias ad satisfaciendum against Charles Cappeau, the [**6]  principal, was returned non est inventus before the issuing of the writ of scire facias against Joseph Cappeau, his special bail. 2. That the court below erred in refusing to permit the evidence contained in the bill of exceptions, to go to the jury.

1. The replication to the second plea concludes to the country, instead of concluding with a verification. The replication does not state that a ca. sa. had been issued, and was returned non est. The issue joined was therefore an immaterial issue, and a repleader should have been awarded. He cited 1 Bac. Ab. tit. Bail, 342, 343. Filewood vs. Popplewell, 2 Wils. 65. Chandler vs. Roberts, et al. bail of White, 1 Dougl. 58. Tidd's Pr. 644, 645. Henderson vs. Withy, 2 T. R. 576.

2. The testimony returned with the commission should have been permitted to go in evidence. 1 Phill. Evid. 272, (note a,) 273. Winthrop vs. Union Insurance Company, 1 Condy's Marsh. 707, (note.)

Finley, for the Appellees. On the first point, cited Williams vs. Vaugh, Cro. Jac. 97. 1 Chitty's Plead. 545, (547.)

On the second point, he referred to the act of 1773, ch. 7, s. 7. 1 Harr. Ch. Pr. 324, 326. Rex vs. Croke, 1 Cowp. 26. Boreing's Lessee vs.  [**7]  Singery, 2 Harr. & Johns. 459. As to the proof of foreign laws, and the manner of executing commissions issued to foreign countries to take testimony, he cited Mostyn vs. Fabrigas, 1 Cowp. 174. Church vs. Hubbart, 2 Cranch, 187, 236, 238. Baptiste vs. De Volunbrun, 5 Harr. & Johns. 98. De Sobry vs. De Laistre, 2 Harr. & Johns. 229, 230. Boreing's Lessee vs. Singery, Ib. 459. Pancoast vs. Addison, 1 Harr. & Johns. 350. He contended, that the commissioners could not delegate their powers, nor could their powers be transferred to others--it was a special confidence reposed in them. Bailis vs. Cochran, 2 Johns. Rep. 417.

Curia adv. vult.  

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

OPINIONBY:
DORSEY 

OPINION:

 [*158]  DORSEY, J. at this term delivered the opinion of the court. The appellees having sued out a scire facias against the appellant, as special bail of Charles Cappeau, in the usual form, without setting out the issuing and return of ca. sa. the appellant pleaded nul tiel record; and also that his principal died before any ca. sa. returned. On the first plea an issue was joined, and judgment given thereon by the court [**8]  against the appellant. The appellees in their replication simply trraversed the fact, alleged in the second plea, (without setting forth the ca. sa. which had issued and been returned, the time when, &c.) and tendered an issue to the country, in which the appellant joined. The verdict and judgment being rendered against the appellant, he seeks a reversal by this court. First. On the ground that the appellees' replication to the second plea concludes to the country, instead of concluding with a verification, which it should have done. If this objection were well founded, it cannot avail the appellant here; his remedy should have been by demurrer in the court below; the defect, if it existed, is cured by verdict. But there is no such defect as that complained of. The replication contains no new matter, which the appellees had a right to demand an opportunity of answering; but is a direct and naked denial of all the matters contained in the plea, and could technically conclude in no other way than by tendering an issue to the country.
The second ground of reversal is, that this replication is erroneous in not setting out the ca. sa, with the time of its issuing [**9]  and return, and that the issue joined upon it is an immaterial issue; and that instead of a final judgment upon the verdict, a repleader should have been awarded. That surely cannot be an immaterial issue which decides the whole matters in controversy between the parties. Such was the issue to which exceptions are now taken. The issue being material, no judgment of repleader could have been given. Admitting, that upon the authority of the case of Fortane vs. Manucaptors of 

 [*159]  Davis, Carth. 8, recognised by Justice Buller in Chandler vs. Roberts and another bail of White, 1 Doug. 58, the replication ought to have set out the ca. sa. and return, (although a different precedent appears in 2 Harr. Ent. 472); yet the omission to do so, in the present case, is mere informality in pleading, which is only bad on demurrer. But if it be matter of substance, it is remedied by the verdict, which the jury could not possibly have given, unless the issuing and return of the ca. sa. had been in evidence before them. And by this form of the issue, the rights of the appellant, though somewhat modified, in truth sustain no diminution. If the ca. sa [**10]  , and its return, had been formally stated in the replication, the appellant might, by a plea of nul tiel record, have put their verity to issue before the court. He accomplishes, in effect, the same object, when on the trial he objects to their going in evidence to the jury. The question presented for the decision of the court, becomes in both cases precisely the same.
The objections to the pleadings being disposed of, it only remains to be inquired, whether the court erred in rejecting the testimony returned with the commission? We think they did not. The power conferred on a commissioner to take testimony, is strictly personal, and on its faithful execution the most important interests of the parties may depend. To ensure such fidelity, oaths, to be taken by the commissioner, and the person by him to be employed as clerk, are annexed to the commission. Especial confidence also is presumed to be reposed in the person appointed. Upon no principle of reason or law, therefore, can the testimony returned with the commission be admissible. The person by whom it was taken held no share in the confidence of the parties or of the court; he received from them no delegation of authority;  [**11]  and even if he had, having failed to take the requisite oath, his proceedings are a nullity. For this singular attempt to transfer a strictly personal trust, the record in this case furnishes neither solution nor apology.
JUDGMENT AFFIRMED, a

a If the government of the place where a commission has issued to take testimony, will not permit it to be executed, the court here will issue Letters Rogatory for the purpose of obtaining testimony. See 1 Peter's C. C, Reports, 236, and the form of such letters.

9 of 23 DOCUMENTS 

OLIVER vs. GRAY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

1 H. & G. 204; 1827 Md. LEXIS 13 

June, 1827, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court. This was an action of assumpsit brought by the appellant, Robert Oliver, surviving partner of John Oliver, against the appellee, and one Robert Taylor, (who was returned non est,) for money had and received; for money lent and advanced; for money laid out, expended and paid; on an insimul computassent, and on a promissory note. The writ was issued on the 14th of March 1823. The defendant pleaded non assumpsit, non assumpsit infra tres annos, and actio non accrevit infra tres annos. To which there were the general replications, and issues joined.

At the trial the plaintiff read in evidence the following promissory note, which was admitted to be signed by the defendant Gray, in the name of Gray and Taylor, in the manner as thereby appears, in his own proper handwriting, and by him delivered to Robert and John Oliver, at the time it bears date. And it was also admitted that the defendant, Gray, and Robert Taylor the other defendant, who was returned non est inventus on the original writ in this cause, were at the time of the execution of the said note, and for some time before and after the execution thereof, partners in trade, and carrying on [**2]  trade and commerce under the name and firm of Gray and Taylor. Which said note is as follows:

"Dollars 5000.     Baltimore, 14th October, 1813.

On demand we promise to pay to the order of Robert and John Oliver, five thousand dollars, with legal interest from this date, for value received.

Gray & Taylor."

The plaintiff also offered in evidence, that the defendant, Gray, in the year 1816, paid the interest due on the said note; and that about one year, or one year and an half after the said interest was paid, the witness, as the agent of Robert and John Oliver, called on the defendant for the interest then due, and that the defendant answered that he had paid the last interest out of his own individual funds, and that he was unable to pay the interest then demanded. That the defendant resided in this state, near Baltimore; that the said house of Gray and Taylor resided in the city of Philadelphia, and failed in 1815 or 1816. The plaintiff further offered in evidence, by John Purviance, Esquire, a competent witness, that some time after Gray and Taylor failed, and had executed the deed of trust for the benefit of their creditors, upon the plaintiff's expressing [**3]  much dissatisfaction at his being excluded from the benefit of said deed of trust, the defendant said he had excluded him from the belief that he was paid out of the securities in his hands; that he did not consider Gray and Taylor indebted to the plaintiff, but that as the plaintiff was dissatisfied, he would be very glad, if it was not too late, that he should be permitted to come in as one of the creditors of Gray and Taylor, and the defendant said he would write a letter to Philadelphia to ascertain whether this arrangement could be made, and to inquire of counsel in Philadelphia. It was, however, the opinion of the counsel, who was consulted, that it was too late, and the plaintiff was excluded from all benefit of the deed of trust. That since this suit was pending, the defendant said to the said witness, frequently, that he regretted that the plaintiff was excluded from the said deed of trust, and wished he had been allowed to come in for his claim under the said deed; but always added, that he did not consider that he was indebted to the plaintiff, because the plaintiff had it in his power to have saved himself, with the sureties received from William Taylor, and ought not,  [**4]  therefore, to have looked to him for the money. The defendant also, in these latter conversations, stated the hardship of his condition; that he was poor, and no benefit could result from a recovery, if the plaintiff succeeded in establishing his claim. That his partner too was poor; and that his partner, who was sued by the plaintiff in Philadelphia, complained of the situation in which the defendant had placed him with the plaintiff, by not including him among the creditors in the deed of trust. And the defendant stated in one or more of the conversations on the subject with the witness, that he understood from the plaintiff himself, that he had securities in his possession sufficient to cover the amount of his claim against Gray and Taylor, as well as William Taylor. The plaintiff further offered in evidence, that he was not paid by the securities referred to in the preceding conversation, and that William Taylor was still indebted to the plaintiff in a large sum of money, although the ship Orozimbo, hereinafter mentioned, had been sold to the best advantage. The plaintiff further read in evidence the endorsement on the bill for discovery, hereafter inserted, and the answer of the [**5]  defendant to the said bill; which said bill and answer here follow: [The bill here referred to was filed in 1819, in Baltimore county court, sitting as a court of equity, by Gray and Taylor, against Robert and John Oliver, for a discovery respecting the ship Orozimbo, &c. The answer thereto, of R. Oliver, was filed in 1824. But as they do not appear to be material in the decision of this cause, they are omitted here.] It was admitted that Robert and John Oliver, mentioned in the said bill, and the payees in the above mentioned note, are the same persons, and that Edward Gray and Robert Taylor, mentioned in the said bill, and who are plaintiffs in the said bill, are the same persons against whom the original writ issued in this cause. The defendant then prayed the opinion of the court, and their direction to the jury, that upon the evidence above stated the plaintiff is not entitled to recover on the second and third issues joined in the cause. Which opinion and direction the Court, [Hanson and Ward, A. J.] gave to the jury. The plaintiff excepted; and the verdict and judgment being against him, he appealed to this court.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

The act of limitations, (1715, ch. 23,) does not extinguish the debt, but only bars the remedy. An acknowledgment of a debt, or a promise to pay it, by the defendant, within the time prescribed, is sufficient to revive the action.

Held, 1. That the suit is to be brought on the original cause of action, and not on the new promise or acknowledgment, which only restores the remedy.

As to what promises or acknowledgments will take a case out of the act of limitations--

Held, 2. That the promise need not be absolute, but a conditional promise is sufficient; and in such case it is incumbent on the plaintiff to show at the trial, either a performance of the condition, or a readiness to perform it.

Held, 3. That the acknowledgment must be of a present subsisting debt, unaccompanied by any qualification or declarations, which, if true, would exempt a defendant from a moral obligation to pay.

Held, 4 That such an acknowledgment, accompanied with a naked refusal to pay, or a refusal and an excuse for not paying, which in itself implied an admission that the debt remained due, and furnished no real objection to the payment of it, is sufficient.

Held, 5. That any unqualified acknowledgment, &c. with no other excuse for not paying than a reliance on the bar created by the act of limitations, is sufficient to take the case out of the act.

Held, 6. That the acknowledgment may be in whole, or in part.

Held, 7. That it is sufficient if it be after bringing the suit.

Held, 8. An admission that the sum claimed has not been paid, is not sufficient to take a case out of the act of limitations, without some further admission, or other proof that the debt once existed.

Held, 9. The acknowledgment need not be made to the plaintiff himself, but may be made to any body else.

Held, 10. It is for the court to decide what kind of promise or acknowledgment is sufficient to take a case out of the act of limitations; and the evidence offered to prove snch promise or acknowledgment, is proper to be submitted to the jury, as in in other cases, under the direction of the court.

Every acknowledgment which is offered to take a case out of the act of limitations, must be taken all together; and no evidence can be received, to turn a denial of the existence of a debt into an acknowledgment of a subsisting liability, by proving that the party making the admission was mistaken in supposing the debt to have been paid.

Where the plaintiff chooses to introduce the defendant's declarations to take a case out of the act of limitations, he must be content to take them as they are, and cannot be permitted to disprove them by other evidence.  

COUNSEL:
Latrobe, for the Appellant, contended,  [**6]  1. That the statute of limitations operates to create a presumption of payment only, and does not extinguish the original debt.

2. That what amounts to an acknowledgment of a debt to take it out of the statute of limitations, is to be left to the jury.

3. That the conversations of the defendant in this case, amount to such an acknowledgment as is sufficient to take the case out of the statute.

On the first point, he cited Sturges vs. Crowninshield, 4 Wheat. 207. Quantock vs. England, 5 Burr. 2630. Clementson vs. Williams, 8 Cranch, 72. Lloyd vs. Maund, 2 T. R. 760. Mountstephen vs. Brooke, 5 Serg. & Low. 245. Leaper vs. Tatton, 16 East, 422. Halladay vs. Ward, 3 Campb. 32. 2 Stark. Evid. 892, 893, 895.

On the second point--Lloyd vs. Maund, 2 T. R. 760. De La Torre vs. Bareclay. 2 Serg. & Low. 270. Bicknell vs. Keppel, 4 Bos. & Pull. 20. 2 Stark. Evid. 896. Bryan vs. Horseman, 4 East, 604. Baillie vs. Inchiquin, 1 Esp. Rep. 435. Smith vs. Ludlow. 6 Johns. Rep 267.

On the third point--Bryan vs. Horseman, 4 East, 599. Trueman vs. Fenton, 2 Cowp. 548. Lawrence vs. Worrall, Peake's N. P. Cases, 93. 2 Stark Evid 893. Baillie vs. Ld. Inchiquin, 1 Esp. Rep. 435. Leaper [**7]  vs. Tatton, 16 East, 420. Clarke vs. Bradshaw, 3 Esp. Rep. 155. Jackson vs. Fairbank, 2 H. Blk. 340. Wood vs. Braddick, 1 Taunt. 104. Smith vs. Ludlow, 6 Johns. Rep. 267. Dean vs. Pitts, 10 Johns. Rep. 35. Anderson vs. Sanderson, 3 Serg. & Low. 190. Ward vs. Howell, et al. 5 Harr. & Johns. 60, 61. Barney vs. Smith, 4 Harr. & Johns. 485. Norris's Peake, 420, &c.

Raymond, for the Appellee. Independent of the plea of the statute of limitations, the plaintiff cannot recover on the general issue. That plea is a bar to his action.

1. The statute of limitations creates a presumption of payment, which the debtor may waive: but unless he does so, no other evidence can be received to rebut that presumption. The debtor may waive the statute by not pleading it. He may promise to pay the debt. In this case the defendant has not waived the statute in either of those ways. But it has been said. that his acknowledgment is a waiver. The making an acknowledgment is not a waiver of the statute. It is not a promise to pay the debt; but only evidence from which the jury may infer a promise. If a special verdict found that the defendant acknowledged the debt, but no promise is found, a judgment [**8]  could not be rendered.

2. It has been contended, that what amounts to an acknowledgment of a debt to take it out of the statute, is to be left to the jury. This would be to take from the court a question of law, and give it to the jury. Here the court below said the acknowledgment was not sufficient evidence to go to the jury, for them to infer a promise to pay the debt. The evidence in the record was not sufficient to amount to a waiver of the statute. The plea of the statute puts in issue not only the new promise, but the existence of the original debt; and the existence of the original debt must be proved, otherwise the the new promise will not be sufficient. It will be a nudum pactum. If there is proof that the old debt has been paid, then the new promise amounts to nothing. No chancellor or jury could, on the bill and answer offered in evidence in this case, find that the defendant owed the plaintiff one cent. There is no acknowledgment of a debt, so as to take the case out of the statute, independent of a promise, whereby a promise could be inferred. He referred to Clementson vs. Williams, 8 Cranch, 72. Danforth vs. Culver, 11 Johns. Rep. 146. Sands vs. Gelson, 15 Johns.  [**9]  Rep. 511. Wetzell vs. Bussard, 11 Wheat. 310. Laurence vs. Hopkins, 13 Johns. Rep. 288.

Gwynn, on the same side. What will restore the remedy when the action is once barred by the act of limitations? This point has not been decided by this court. It has been said that this judgment must be reversed, 1. That the act of limitations does not extinguish the debt, but bars the remedy. It is a presumption of payment if the debt is not sued for within three years. 2. That an unqualified acknowledgment of the debt will take the case out of the statute. But what is evidence of an acknowledgment is not to be left to the jury; it is for the court. There are only two cases where the question was left, as a matter of doubt, to the jury. One of those cases was overruled in Bicknell vs. Keppel, 4 Bos. & Pull. 20. Collman vs. Marsh, 3 Taunt. 380. It is only in very doubtful cases where the subject is left to the jury. But where the acknowledgment is accompanied with a denial, it is not left to the jury. All the English cases go upon the ground that the debt was acknowledged to be existing, and no denial of it is made. In Bryan vs. Horseman, 4 East, 599, the fact of the acknowledgment would not [**10]  have been sufficient; and if nothing further had been said, the case would have been barred. The act of limitations takes in other actions as well as assumpsit. In no case but in assumpsit can an action be brought which has been barred by the statute. All other actions are barred, and no acknowledgment, &c. can sustain the action. Boydell vs. Drummond, 2 Campb. 162. Rowcroft vs. Lomas, 4 Maule & Selw. 457. This action was brought in March 1823, and the only evidence at the trial was conversations which took place after the action was brought between the defendant, and the counsel of the plaintiff. That evidence furnishes complete proof that the defendant always denied the debt to be due. To revive a debt barred by the statute, there must be a voluntary acknowledgement of its existence without any denial or condition. Wetzell vs. Bussard, 11 Wheat. 316, (note.) 1 Com. Dig. 338, (new ed.) The English decisions have gone so far, that if the debtor has acknowledged the debt to be due, but said he would not pay it, it was taken out of the statute. But not where the debtor denied the debt to be due, although he acknowledged that it had once existed. Norris's Peake, 423. Hudson vs. Carey,  [**11]  11 Serg. & Rawle, 10, 13. 2 Stark. Evid. 895, (note.) Fries vs. Boisselet, 9 Serg. & Rawle, 131. Beale vs. Rowland, Hard. Rep. 301. The evidence in the record is, that within three years the defendant said he regretted, &c. These conversations were after the action was brought, and after the defendant had pleaded the act of limitations, and were had with the plaintiff's counsel. Holme vs. Green, 2 Serg. & Low. 480. Beale vs. Nind, 6 Serg. & Low. 517. Barney vs. Smith, 4 Harr. & Johns. 485, go entirely upon the acknowledgment which was made without any denial of the debt being due, or refusal to pay it. It must be with the assent of the defendant that he is made liable for a debt once barred by the statute.

Taney, in reply. The prior debt relied on was the promissory note upon which the action was brought; and whether it had been paid or not was a fact for the jury to decide. That the debt once existed, is proved positively. The evidence offered was read without objection. The endorsement on the bill filed in equity only, and the answer thereto, were read in evidence.

The act of limitations either goes to the right to recover, or it bars the remedy. If the contract is rescinded,  [**12]  then the party could never recover on it. He could only use it in a suit on a new promise. An act of bankruptcy operates to the extinguishment of the contract; and if a new promise is made, the party must sue upon the new promise. In the cases cited from the New-York Reports, the suits were upon new promises. The case of Sands vs. Gelston, 15 Johns. Rep. 519, was made analogous to the cases of bankruptcy. Sturges vs. Crowninshield, 4 Wheat. 207, is in opposition to the New-York decisions. Norris's Peake, 422, 423, 424, (and notes.) The only operation of the act of limitations is to create a presumption that the debt has been paid. 2 Stark. Evid. 891 to 897, (and notes.) Clementson vs. Williams, 8 Cranch, 73, 74. Barney vs. Smith, 4 Harr. & Johns. 485. The act of limitations does not extinguish the debt, but only creates a presumption of payment. This has been repeatedly decided by the courts in England, and in this state. If the statute ought to be expounded differently, yet having been otherwise expounded by a series of decisions for two centuries, it is a judicial exposition, and has become a part of the statute. This court cannot overrule such decisions, as it would be to legislate,  [**13]  and not to adjudicate. The burthen of proof is on the plaintiff to prove that the debt has not been paid. If it is assumed that the statute creates a presumption of payment, but does not extinguish the debt, then it is only necessary for the plaintiff to prove that the debt has not been paid. This will repel the presumption of payment; and it becomes a question of fact whether or not the presumption is repelled. If the defendant acknowledged that the debt was once due, it is not sufficient unless he acknowledged he had not paid it. In Boydell vs. Drummond, 2 Campb. 162. Rowcroft vs. Lomas, 4 Maule & Selw. 457, and Clementson vs. Williams, 8 Cranch, 72, the evidence was only that the debt once existed. Where the acknowledgment admits the debt was originally due, and had not been paid, it will remove the bar of the act of limitations. Wetzell vs. Bussard, 11 Wheat. 310, 313. Where a party refers to a mode of settlement, which is proved to be false, the statute is no bar. 2 Stark. Evid. 894, (note.) 895. Here the defendant alleged that the debt sued for had been discharged in a particular way, which has been disproved by the plaintiff's answer to the bill, which the defendant and his [**14]  partner had filed against him, as given in evidence at the trial of this case. Why should this presumption of payment be distinguished from other presumptions? It is not a conclusive presumption, not to be repelled, but is to be left to the jury. Many of the cases cited assume the principle that it was sufficient to be left to the jury whether or not payment had been made. Any evidence from which the jury might infer that payment had not been made, was admissible; and if the jury found that payment had not been made, then the statute was no bar. If it is assumed as the doctrine that the statute goes upon the presumption of payment, it must be dealt with like all other presumptions; and if so it is to be rebutted by evidence upon which the jury are to decide. It is not for the court to say whether an acknowledgment was or was not sufficient to rebut the presumption of payment. If it is a question for the court to decide, then there must be, first, proof of the debt; and secondly, proof of the acknowledgment of the defendant that the debt had not been paid. The question then is, was the proof sufficient to establish that the debt had not been paid? Wetzell vs. Bussard, 11 Wheat. 310.  [**15]  There is no evidence that the defendant paid the debt, but he said he did not consider himself indebted to the plaintiff, because the plaintiff had it in his power to save himself. This is a clear admission that the debt had not been paid. The qualification made by the defendant was evidence to rebut the presumption of payment. The answer to his bill in equity proves that the debt had not been paid. 2 Stark. Evid. 894, 895. Poe vs. Conway's Adm'r. 2 Harr. & Johns. 307.  

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

OPINIONBY:
BUCHANAN 

OPINION:

 [*212]  BUCHANAN, Ch. J. delivered the opinion of the Court. The appellee rests his defence upon the act of limitations of this state, on the effect and operation of which we are called upon to decide; and we approach the subject not without hesitation, surrounded and obscured as it is, by a cloud of discordant adjudications. Perhaps there is not a British statute which has given birth to so many conflicting decisions, as the statute of the 21 James I, ch. 16, the statute of limitations of that country; and we are familiar with the expressions of regret, by the eminent men who have sat in the [**16]  judicial tribunals there, that the letter of that statute was ever departed from; a regret for which sufficient cause is to be found in the incongruity presented by the numerous decisions on that branch of the law.
The statute of James was never held in England to extinguish the debt, but was always understood as operating upon 

 [*213]  the remedy only. In Heyling vs. Hastings, 1 Ld. Raym. 389, Holt, Chief Justice, said that "the statute of limitations was founded upon very good reason, because men should not unravel contracts so long after, upon a supposition, that if they were not paid, they would sue sooner; and acquittances being subject to be lost, a man might be sued for what he had paid before." In Quantock vs. England, 5 Burr 2628, Lord Mansfield said, "it was settled that the statute of limitations did not destroy the debt, but only took away the remedy." In Mountstephen vs. Brooke, 5 Serg. & Low. 245, Abbott, Chief Justice, said, "the statute was passed to protect persons who were supposed to have paid the debt, but to have lost the evidences of such payment." Hence after a consultation with all the judges,  [**17]  but one, it was stated by Lord Holt, in Heyling vs. Hastings, 1 Ld. Raym. 421, to be their unanimous opinion, that a promise by the defendant, at any time within six years before the commencement of the action, to pay the debt, was sufficient to take the case out of the statute. But that a bare acknowledgment of the debt within that period was held to be evidence only of a promise, and therefore not of itself sufficient. This distinction prevailed for a long time, but was at length broken down, and ceased to be regarded.
In Yea vs. Fouraker, 2 Burr 1099, it was ruled that an acknowledgment of the debt, even after the commencement of the action, took it out of the statute of limitations. In Quantock vs. England, a submission to a commission of bankruptcy by a debtor, after the debt had been of more than six years standing, was held to be a waiver of the benefit of the statute, and such an acknowledgment as took the case out of it; and Lord Mansfield said, that the slightest word of acknowledgment would do it. And in Trueman vs. Fenton, 2 Cowper 548, he said, "the slightest acknowledgment has been held sufficient; as saying,  [**18]  prove your debt and I will pay you; I am ready to account, but nothing is due to you. And much slighter acknowledgments than these will take a debt out of the statute."
These cases have been followed by a series of decisions from that time to this, by which this principle at least is now fully settled, that an acknowledgment of the debt by the defendant, within six years before the bringing of the suit, is sufficient to 

 [*214]  take the case out of the statute of limitations; and very slight evidence, indeed, of an acknowledgment, has sometimes been deemed sufficient. In Leaper vs. Tatton, 16 East 420, Lord Ellenborough said, "as the limitation of the statute is only a presumption of payment, if his own acknowledgment that he has not paid be shown, it does away the statute." In Sluby vs. Champlin, 4 Johns. 461, Yates, Justice, who delivered the opinion of the court, said, "it is now generally received as law, that if a party acknowledges a debt to be unpaid, it is such a waiver of the protection of the statute as to repel the presumption of payment, being a recognition of the former liability." And in Sturges vs. Crowninshield, 4 Wheat. 122, [**19]  Chief Justice Marshall said, "statutes of limitations relate to the remedies which are furnished in the courts. They rather establish, that certain circumstances shall amount to evidence that a contract has been performed, than dispense with its performance."
Since the case of Sluby vs. Champlin, the distinction which formerly prevailed in England between a promise to pay, and an acknowledgment of the debt, has been revived in New-York; and now, both in that state, and in Pennsylvania, the latter is held to be evidence only, to be left to the jury, of a promise to pay. Proceeding upon that principle, it seems to be settled in those states, that though a slight acknowledgment of the debt, when standing alone, will be sufficient, yet that if the debtor qualifies his acknowledgment in such a manner as to show it is his determination not to pay, the statute will protect him; as where a man admits the debt to be due, but declares that he intends to insist on the benefit of the statute. (Murry vs. Tilly, cited with approbation in Fries vs. Boisselet, 9 Serge. & Rawle 128;) or admitting it to be due, declares that he will not pay it--as in Fries  [**20]   vs. Boisselet, where the proof was that the defendant on being arrested, said he owed the plaintiff the money, and intended to have paid him, but that he had taken ungentlemanly steps to get it, and as he had taken those steps he would keep him out of it as long as he could; which was held not to be sufficient to take the case out of the statute. And the same principle is fully recognized in Sands vs. Gelston, 15 Johns. 511, and Roosebelt vs. Mark, 6 Johns. Ch. 266. 

 [*215]  The only difference between the act of limitations in this state, and the statute of James is, that here the limitation is but three years; and in this state, the rule prevailing in England, that an acknowledgment of the debt by the defendant within the time prescribed for bringing the suit, is sufficient to take the case out of the statute, has been adopted. In Barney vs. Smith, 4 H. & J. 485, the venerable man who then presided, Judge Chase, said "the act of limitations does not operate to extinguish the debt, but to bar the remedy. The act of limitations proceeds upon the principle, that from length of time a presumption is created, that the [**21]  debt has been paid, and the debtor is deprived of his proof by the death of his witnesses, or the loss of receipts. It is the design of the act of limitations to protect and shield debtors in such a situation; and consistent with this principle and this view, the decisions have been made, that the acknowledgment or admission of the debt will take the case out of the act of limitations; because, if the money is still due and owing, the defendant has not suffered from the lapse of time, nor has any inconvenience resulted to him therefrom." And again, in another part of his opinion, he says, "the acknowledgment to the surviving partner saves and preserves the remedy in the survivor, and avoids the bar by the act of limitations. It does not create a new assumpsit, but is a saving of the remedy on the original promise." We, therefore, are not called upon now for the first time to give a construction to that act; that task has been performed by others, at whose hands we have received it, with their interpretation of it, from which, if we were disposed to do so, we should not feel ourselves at liberty to depart.
Perhaps it would have been better, if instead of endeavouring to rescue [**22]  particular cases out of its operation, the letter of the statute had been strictly adhered to; if the original debt had always been considered as extinguished, and the moral obligation, treated as a sufficient consideration for an express promise to pay, on which to found an action. But according to all the cases, (for in this at least they agree,) the debt is considered as not extinguished, and the defendant can only avail himself of the statute in England, and act of assembly here, by pleading it; which, if he omits to do, it is held to be a waiver 

 [*216]  of its benefit, and the plaintiff may recover on the general issue, though the debt should appear by the declaration to be of longer standing than the limited period. This settled construction has produced all the difficulties and discrepancies complained of; but it is a construction which is not now to be shaken by us; nor on the other hand should its operation be extended further than it has already gone.
Taking the act of limitations, then, as we find it, operating upon the remedy only, and not as extinguishing the debt; and feeling the necessity for a more definite and certain understanding of the effect of the adopted [**23]  construction, than can easily be collected from particular cases, we will endeavour, not to reconcile the various decisions that are to be found in the books on this subject, but to lay down some general rules for the practical application of the principles they establish; that the act does not extinguish the debt, but only bars the remedy, and that an acknowledgment by the defendant of the debt, or a promise to pay it within the time prescribed, is sufficient to revive the action.
First, then, the suit is to be brought on the original cause of action, and not on the new promise or acknowledgment, which only has the effect to restore the remedy; which is not only according to the common practice, but is directly and strongly asserted in Barney vs. Smith.
Second. It need not be absolute and unconditional, but a conditional promise is sufficient; and in such case, it is incumbent on the plaintiff to show at the trial, either a performance of the condition, or a readiness to perform it; as if the words be, prove your debt, and I will pay you, which is an express promise to pay, on condition that the debt is proved. Heyling vs. Hastings, 1 Ld. Raym. 389. Trueman vs. Fenton, 2 Cowper 548. [**24]  Davies vs. Smith, 4 Espinasse Rep. 36 Loweth vs. Fothergill, 4 Camp. 185. Bush vs. Barnard, 8 Johns. 407. These cases furnish different examples of conditional promises to pay, each of which was held sufficient to take the case out of the statute.
Third. An acknowledgment, to take the case out of the act of limitations, must be of a present subsisting debt, unaccompanied by any qualification or declarations, which, if true, 

 [*217]  would exempt the defendant from a moral obligation to pay. For the law will not raise an assumpsit, or imply a promise to pay, what in equity and good conscience a man is not bound to pay. As if the defendant admits the debt, but at the same time resists the payment of it by alleging that he has a set-off against it, and that the plaintiff owes him more money; which virtually amounts to a denial of his liability, and a refusal to pay any part of it, on grounds furnishing a sufficient moral excuse for not paying it. And indeed, taking the whole of the acknowledgment together, (which must always be done,) is in effect equivalent to a declaration that the debt is discharged. If it were otherwise, and the [**25]  plaintiff was permitted to avail himself of the acknowledgment of the debt, and to reject the qualification, injustice would always be done where the set-off, claimed by the defendant, should be itself barred by the act, or he should be in want of testimony sufficient to support it. Or, if he admits the receipt of money, and that it has not been paid, but claims it as a gift; which, if true, would exempt him from any liability to pay. Or, if on being called upon, the party says he has paid the debt, and will furnish the receipt, but fails to do so, this will not be sufficient to charge him; but is the very case intended to be provided for by the act, the case of a man who is supposed to have lost his evidence of payment.
Fourth. An acknowledgment of the debt, with a naked refusal to pay, or a refusal accompanied with an excuse for not paying it, which in itself implies an admission that the debt remains due, and furnishes no real objection to the payment of it, is sufficient.
Fifth. Any unqualified acknowledgment of a present subsisting debt, or acknowledgment, with no other excuse for not paying it than a reliance on the bar created by the act of limitations, is sufficient [**26]  to take it out of the act. Clarke vs. Bradshaw & Coghlan, 3 Esp. 155. Bryan vs Horseman, 4 East 599. Evans, in the notes to his translation of Pothier on Obligations, suggests to those whose claims are barred by the statute, and who wish to obtain an acknowledgment of the subsistence of the debt, the utility of filing a bill of discovery, and adds, "if the subsistence of the debt is admitted, 

 [*218]  and without perjury it cannot be denied, it will not, if there is any consistency of decision, be of any avail to add a claim to the protection of the statute."
The act of limitations, according to the received construction, proceeds upon the supposition, that from length of time the debt is paid, and was only intended to protect a party where the presumption arising from lapse of time is, either, that the debt has been discharged, or never existed, and not to protect him from a debt acknowledged by himself to be still due and unpaid, with no other excuse for not paying it than the supposed bar created by the act. When, therefore, a party admits the debt to be due, but standing upon the act of limitations alone, in the same breath refuses to pay it, he [**27]  admits a case, to which the act, according to its spirit and reason, does not apply, under the interpretation given to it, and his refusal cannot avail him. But the continuing existence of the debt continues and carries with it the implied assumpsit that the law raises, which is not rebutted by his refusal to pay. Hence the very common use in the books of the terms "takes the case out of the statute of limitations;" that is, that it is a case not embraced by the statute.
Sixth. The acknowledgment of the debt may be in whole or in part.
Seventh. It is sufficient if it be after the bringing of the suit. Yea vs. Fouraker, 2 Burr 1099. Which could not regularly be if it stood upon the footing alone of evidence only of a new promise, the replication being assumpsit infra tres annos before the bringing of the suit, and confining the issue to a time within that period; so that an acknowledgment, made after the bringing of the suit, would not be within the issue. The issue, therefore, in such a case, must be sustained on the part of the plaintiff, on the idea of an implied promise, continuing and running with the old debt acknowledgment to be still due.  [**28]  
Eighth. An admission that the sum claimed has not been paid, is not sufficient without some further admission, or other proof, that the debt once existed.
Ninth. The acknowledgment need not be made to the plaintiff himself, but may be made to any body else.

 [*219]  Tenth. What kind of promise or acknowledgment is sufficient to take a case out of the act of limitations, is for the court to decide; and the evidence offered to prove such promise or acknowledgment, is proper to be submitted to the jury, as in other cases, under the direction of the court.
It has been contended in this case, that where the defendant alleges the debt to have been discharged, and refers to a particular mode of discharge, the plaintiff may entitle himself to recover by disproving the mode of discharge referred to. We are aware that the same has been said elsewhere. In Hellings vs. Shaw, 2 Serg. & Low. 236, Chief Justice Gibbs said, "where the defendant has stated, not that the debt remained due, but that it was discharged by a particular means, to which he has with precision referred himself, and where he has designated the time and mode so strictly, that the court can say it [**29]  is impossible it had been discharged in any other mode. There the court have said, if the plaintiff can disprove that mode, he lets himself in to recover, by striking from under the defendant the only ground on which he professes to rely." But afterwards, in Beale vs. Nind, 6 Serg. & Low. 517, Justice Bayley, afser reciting the words of Chief Justice Gibbs, says, "I certainly am not aware of the cases to which my Lord Chief Justice Gibbs refers to support that proposition." Thus strongly questioning the soundness of the proposition, to which, (seeing the inroads that have already been made upon the statute, which we are not disposed to push any farther, and no such decision having been made by this court,) we are not prepared to yield our assent; but think that every acknowledgment of a debt, which is offered to take a case out of the act of limitations, must be taken all together; and that no evidence can be received to turn a denial of the existence of the debt into an acknowledgment of a subsisting liability, by proving that he was mistaken in supposing it to have been paid. Which would be to take a case out of the act of limitations by other proof than the acknowledgment [**30]  of the party; for in such a case he manifestly not only does not intend to acknowledge a present subsisting debt, but in fact denies it, and there is nothing to carry, or on which the law can raise an implied assumpsit. The declarations of the defendant are the plaintiff's own proof, 

 [*220]  and if he chooses to introduce them, he must be content to take them as they are, and cannot be permitted to disprove them by other evidence, in order to raise an implied promise, or to furnish evidence of a promise to pay a debt, the existence of which is denied. With these views of the subject we do not think, from the evidence set out in the record, that the plaintiff is entitled to recover. Whatever might have been the effect of the expressions of regret by the defendant, if they stood alone, "that the plaintiff had been excluded from the deed of trust, and had not been allowed to come in for his claim," the declarations, always accompanying them, "that he did not consider that he was indebted to the plaintiff, because he had it in his power to have saved himself with the securities received from William Taylor, and ought not, therefore, to have looked to him for the money," sufficiently [**31]  show that it never was his intention to acknowledge the claim of the plaintiff as a subsisting debt due by him, but on the contrary, taken together, amounted to a denial of any existing liability on him to pay; and for a reason, which, if true, furnished a real objection, and sufficient excuse for not paying it. For, if the plaintiff had in his hands securities with which he should and might have covered the amount of his claim, but from negligence or misapplication of the funds did not do so, he should not now look to the defendant for it; nor can he be permitted by evidence of the insufficiency of those securities to convert the defendant's denial of his liability into an acknowledgment of a present subsisting debt.
JUDGMENT AFFIRMED.  

10 of 23 DOCUMENTS 

M'ELDERRY, et al. vs. FLANNAGAN'S Adm'r.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

1 H. & G. 308; 1827 Md. LEXIS 22 

June, 1827, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court. Replevin by the appellee against the appellants for a sloop or vessel on the stocks, taken in a certain place called The Ship Yard of the plaintiff. The defendants avowed the taking, &c. for two years rent in arrear of the lands and tenements in which, &c. under a demise thereof made by the defendants to the plaintiff's intestate, on the 18th of August 1813, at the yearly rent of $ 600; and because $ 1200 were due for two years, &c. well avows the taking, &c. for and in the name of a distress for the said rent, &c. The plaintiff pleaded to the avowry--1. That the plaintiff's intestate did not hold or enjoy the said place in which, &c. as tenant thereof to the avowants under the supposed demise thereof, &c. 2. That no part of the supposed rent was or is in arrear, &c. Issue tendered. 3. That the said place in which, &c. was parcel of a close which the plaintiff's intestate held as tenant to the avowants a long time before the time when the said distress was made; and that the avowants, a long time before the time at which the said distress was made, and before the time at which the supposed rent for which the said distress was and is pretended to [**2]  have been made, or any part thereof, was supposed or pretended to be due, entered wrongfully into the said close, and put out the plaintiff's intestate from a great part thereof, &c. 4. That the plaintiff's intestate was a ship-carpenter, and that the said place, in which, &c. was occupied by him as a common and public ship-yard for the building and repairing of ships and other vessels; and that the said goods and chattels were the property of one William Carman, and were a certain sloop or vessel upon the stocks and unfinished, and at the time of the said distress was in the possession of the plaintiff's intestate in the said public ship-yard, in the ordinary course of his trade as a ship-carpenter, for the purpose of being built and finished, and for no other purpose, and that the plaintiff's intestate had no property therein except as bailee as aforesaid of the said Carman, &c. The defendants joined issues to the first and second pleas. To the third plea they replied, that they did not, before the time at which the distress was made, and before the time the said rent was due, enter wrongfully into the said close, and put out the plaintiff's intestate, &c. Issue joined. To the fourth [**3]  plea they replied, that the said goods and chattels were not the property of William Carman, and the sloop or vessel was not, at the time of the distress, in the possession of the plaintiff's intestate, in his public ship-yard, in the ordinary course of his trade, &c. and and that he had property therein. Issue joined.

1. The avowants, at the trial, gave evidence, that in the year 1810, William Flannagan, the plaintiff's intestate, rented of Thomas M'Elderry, under whom the defendants claim, part of the property, for the rent of which the distress was laid in this cause, at the rent of $ 500 per annum, and afterwards rented another part of said property at the additional rent of $ 200 per annum; and that the property thus rented extended from, &c. That afterwards Flannagan on the 18th of August 1811, rented by parol of the defendants the whole property from A, round to N, for five years, for $ 1200 per annum. That after Flannagan had enjoyed the same for somewhat more than one year, the avowants having received a proposition for the renting of the wharf from I to M, called upon Flannagan and asked him if he would give up a part of said wharf for a proper consideration, to enable [**4]  them to make a lease in perpetuity to Martin F. Maher; that Flannagan in July 1813, agreed that the avowants should lease to Martin F. Maher a part of said property called the New Wharf, as described in the lease to them; and that he, Flannagan, should rent the residue in his possession at the rate of $ 600 per annum; and that Flannagan enjoyed the property from A to I for two years next after this 18th of August 1813, and until the time of the distress which was laid by the defendants. And the avowants further proved, that immediately upon said agreement the avowants executed the following lease to said Maher, dated the 29th of July 1813, for all that lot, piece or parcel of ground, situate, lying and being in the city of Baltimore, and contained within the following metes and bounds, courses and distances, to wit: Beginning, &c. To have and to hold, &c. for 99 years, at the yearly rent of $ 2125, with the usual covenants to pay the rent, and liberty to re-enter on nonpayment, &c. Which lease extends from I to M; and that Flannagan having some timber on said part so leased to Maher, he removed the same from off said lot when requested so to do; and that Flannagan was present and saw [**5]  the improvements made by Smith and Maher on the whole of said lot, and never objected to the same. That Maher paid rent to the avowants for his part of said lot up to the time of laying the distress in this case, and was never forbidden so to do by Flannagan. And that after the said lease was made by the avowants to Maher, the front of which, from I to M, was lying on the navigable waters of the Basin of Baltimore, Maher applied to the port wardens of Baltimore for permission to drive the piles from H to N, which permission was granted to him by said port wardens, and that said piles were not driven by the direction or authority of the avowants, or either of them; and that during all the holding of Flannagan there was a chained moveable floating log fixed with one end to H, and the other on the piles, long enough to permit vessels and timber to come to the wharf from H to I, this log serving as a door for that purpose, and that there never was a period during the whole of said renting by Flannagan, in which there was not ample room on the other part of said demised premises, at which he might land lumber or carry in vessels, those being the only two purposes for which said wharf was [**6]  requisite. The avowants further gave in evidence, by one Daniel Conn, a competent witness, that after the two years rent became due, which are in controversy in this cause, he went with Mrs. M'Elderry, one of the avowants, and one of the lessors of Flannagan, to Flannagan, to require of him the payment of said two years rent. That they saw Flannagan, who objected to pay it, but that nothing was said about any other rent than that now in dispute. The plaintiff, in order to support the third issue on his part, gave in evidence, that William Flannagan, the original plaintiff in this cause, some time prior to the year 1810, held as tenant to Thomas M'Elderry, deceased, whose heirs at law the defendants are, at the annual rent of $ 500, a portion of the property known by the name of M'Elderry's Wharf, beginning for the water front of said portion of property at the point marked A upon the plot hereunto annexed, and running thence southerly to B, and thence round to O; that one Ludwig Herring occupied under the said Thomas M'Elderry, and as his tenant, about 80 feet front, or thereabouts, lying immediately north of the point A; and that one Salisbury occupied the lower end of the wharf;  [**7]  that at that time the wharf extended as far south as the line H I R; and that there was also an unfinished wharf projecting southwardly from the line I R, about 60 feet; that Salisbury occupied the whole lower end of the wharf, including the said unfinished wharf or projection, and the water right in front thereof, and of the line H I. That by a contract made between the said Thomas M'Elderry and Flannagan, sometime in 1810, the said M'Elderry demised to Flannagan the whole of said wharf property, which had been rented both by Flannagan and Salisbury, at the annual rent of $ 700. That subsequent to the said last mentioned demise the wharf was extended to its present limits, as laid down upon the plot, southwardly from the termination of the old wharf to the point M and N. That after the said extension, the defendants, who had then succeeded to the property upon the death of Thomas M'Elderry, whose heirs at law they are, demised by parol, to Flannagan, the whole of said wharf property beginning at A round to N, at the annual rent of $ 1200 for five years, commencing on the 18th of August 1811. That on the 29th of July 1813, the defendants leased to Job Smith, and others, at the annual [**8]  rent of $ 2125, all that part of the wharf which is south of the line H I R. That Smith, and others, entered and took possession of the part of the wharf so leased, and drove piles in the place indicated by the dotted curved line from H to N, to the utter destruction of that part of the wharf called the South Cross Wharf; that is to say, that part of the wharf from H to I. That the said piles, and the occupier of the west front wharf running southerly from I to M by the said last mentioned lessees, not only deprived Flannagan of the use of all that part of the property south of the line H I R, but rendered the south front wharf from H to I of no use or value to Flannagan. That the said south front wharf had previously been of great importance to Flannagan. That Flannagan was a ship-carpenter, and that the said south front wharf was, on account of its situation in relation to the part, particularly adapted for the purpose of heaving down vessels, and was employed by Flannagan for that purpose; one large brig was actually hove down at the said south front wharf. After the said lease from the defendants to Smith, and others, no vessel could be hove down at said south front wharf, as well [**9]  on account of the driving of the piles aforesaid, as of the occupation of the west front wharf, running southwardly from I, by the said last mentioned lessees. The plaintiff further proved by William Carman, a witness sworn in the cause, that in the month of March 1813, the defendants leased to the witness 100 feet of ground for 99 years, renewable for ever, at the rate of five dollars per foot per annum, by deed dated the 8th of March 1813, and which was executed by Elizabeth, John and Thomas M'Elderry, in virtue of an act of assembly appointing them trustees, &c. to William Carman, James Mosher and Robert Carey Long, in the proportion of one undivided half to Carman, one undivided fourth to Mosher, and the remaining undivided fourth to Long, &c. And that in pursuance of, and by authority of said lease, the witness entered into the said 100 feet of ground, and began to remove some lumber and timber belonging to Flannagan from off the same, and to dig the foundation for an office. That while so removing said timber and lumber, and digging said foundation, Flannagan came to witness and told him he was encroaching on the grounds leased to him, Flannagan, by the defendants. That witness [**10]  replied that he did not know how that was; that he had a lease of the ground, and that he, Flannagan, would have to settle it with the defendants. That the witness proceeded to remove, and did remove the lumber of Flannagan from off the ground, and dug the foundation, and built a brick office thereon, and enclosed the whole of said 100 feet of ground by a fence. The plaintiff further proved, that 16 feet of the 100 feet leased by the defendants to Carman, (from which 16 feet Carman removed the lumber and on which he built the office as before stated,) was part of the ground originally leased by Flannagan from the defendants; and that Carman has continued to hold the said 16 feet under and by virtue of the authority of his lease aforesaid, ever since, and held the same as aforesaid during the time in which the rent in this case is alleged to have accrued. The avowants then proved, that about the time of the lease to Carman, he proceeded to erect a brick shop on said 16 feet, and proceeded to remove some of Flannagan's lumber which was lying thereon; that Flannagan came and at first objected to it, but that Carman told him he had leased of M'Elderry, and then proceeded to remove the [**11]  lumber, Flannagan standing by and seeing its removal without making any further objections; and that Flannagan never did object afterwards to the erection of said office, until the quarrel arose in 1816, and he sent Carman notice that he should consider him his tenant. The plaintiff then moved the court to direct the jury, that if they shall believe the lease from the defendants to William Carman, as given in evidence, included a part of the ground to which Flannagan was entitled under his lease from the defendants of the 18th of August 1811, and that Carman, by virtue of his lease, entered upon such part, and thereby excluded Flannagan from the possession thereof, without his consent and against his will, then such entry and exclusion suspended the legal right of the defendants to demand rent from Flannagan for the whole or any part of the property so leased to him, as long as Flannagan was deprived of the possession of that part so leased and occupied by Carman, and included in the lease from the defendants to Flannagan as aforesaid. Which opinion and direction the Court, [Archer, Ch. J.] gave. The avowants excepted.

2. The preceding evidence having been given, the avowants [**12]  made the three following prayers to the court: 1st. If the jury should believe from the evidence, that on the 18th of August 1813, the date of the lease from the avowants to Flannagan, upon which was reserved the rent of $ 600, Flannagan knew that Carman claimed, and had taken possession of, under his lease from the avowants, of the 16 feet lying between the lines on the plot from A to, &c. that then they may presume that said 16 feet were not intended to be included in the lease aforesaid to Flannagan. Which direction the court refused to give; but informed the jury that they should look to all the facts in evidence, and from them determine the extent and limits of the lease to the plaintiff. 2d. If the jury believe from the evidence, that after Carman took possession of the 16 feet marked on the plot, Flannagan did not apply to the avowants in relation to said possession, but afterwards gave Carman notice to pay the rent of said 16 feet to him, Flannagan, that then Flannagan elected to take Carman as his tenant, and that his so doing prevents said possession from amounting to an eviction of Flannagan from the property held by him from the avowants. 3d. Upon all the evidence and pleadings [**13]  in this cause, the avowants prayed the court to instruct the jury, that they are entitled to recover. Which direction the court refused to give. The avowants excepted.

3. The plaintiff, in order to support the fourth issue on his part, gave in evidence that William Carman, mentioned in the fourth plea of him the plaintiff, agreed with William Flannagan, the original plaintiff in this cause, that he, Flannagan, should build for him, Carman, a sloop, for which Carman was to pay as the work advanced. That Flannagan accordingly built a sloop for Carman, and that Carman paid to Flannagan money on account of the said sloop. That on the 27th of February 1816, the captain employed by Carman to command said sloop, commenced superintending the said sloop, and did actually superintend and work on board her, and that his wages commenced from that day, she then being upon the stocks. That the said sloop was intended to be launched upon the 1st of March 1816, about 12 o'clock at noon; that about 10 o'clock, A. M. on the said 1st of March, the defendants distrained the said sloop; that in the course of the day she was replevied, and was actually launched about 5 o'clock, P. M. of the same day.  [**14]  That previous to the distress, Carman had paid to Flannagan, for and on account of the said sloop, and in pursuance of the contract for building her, the sum of $ 1,450. That at the time of the distress the mast of the said sloop was in her, and she was as much rigged as she could be previous to launching. That the joiners' work was all done; that she was painted and varnished. That there was much blacksmiths' work done upon her. That Flannagan had nothing to do with the rigging, joiners' work, blacksmiths' work, painting or varnishing the said sloop; but that the same were to be paid for by Carman. That there were other workmanship and materials employed in and about the said sloop before the said distress, for which Carman had paid, or was responsible, and which were finished by persons other than Flannagan, and with which Flannagan had nothing to do. That Carman had paid, and was responsible for the sum of $ 710, and upwards, for the workmanship and materials furnished and employed in and about the said sloop, by persons other than Flannagan, and with which he, Flannagan, had nothing to do. That Flannagan was a ship-carpenter; and that the place where the distress was made was his [**15]  ship-yard. The defendants, to support the said issue on their part, gave in evidence, that there was due to Flannagan, on account of the said sloop, the sum of $ 333 66. That the contract between Carman and Flannagan was that Flannagan should furnish all the materials for his work on said vessel, and should finish the said sloop to a cleat. That the meaning of said contract, as understood by merchants and ship-carpenters, is that the whole of the ship-carpenter's work shall be done; that it is part of the ship-carpenter's work to launch the vessel, which is a difficult and dangerous operation, and until it is over, vessels are always considered at the risk of the builder. That said vessel was only measured, and her tonnage ascertained, after she was launched; and that said distress was levied whilst said vessel was on the stocks, and before the carpenter's certificate was given for her; and it is quite usual for captains of vessels to superintend the building and equipping of vessels whilst on the stocks. The defendants then prayed the court, that upon the foregoing evidence, the plaintiff was not entitled to recover. Which opinion the court refused to give. The avowants excepted.  [**16]  Verdict and judgment for the plaintiff; and the defendants (the avowants,) appealed to this court.  

DISPOSITION:
JUDGMENT REVERSED, AND PROCEDENDO AWARDED.  

HEADNOTES:

The jury alone are competent to decide on facts of which contradictory evidence may be offered. Before the court can legally give an instruction to the jury, on the prayer of one of the parties, they must admit the truth of the testimony offered by the other, and that also offered by the first, which may operate in his opponent's favour, and the existence of all material facts reasonably deducible therefrom, even though contradicted in every particular by the testimony of him who seeks the instruction. Upon no other principle can the case be withdrawn from the consideration of the jury.

Where the extent and limits of property leased are not exactly defined by the contract under which a tenant took possession, and in an action to recover the rent, the tenant relied upon an eviction of part of the demised premises by a third person claiming under his landlord, as bar to its payment, the jury should look to all the facts in evidence, and from them determine the limits of the tenant's lease, and whether there was an eviction or not.

Where a landlord having leased property to one tenant, subsequently leases a part of the same to another, the first is under no obligation to resist the second by force in taking possession; and notice by the first to the second tenant, (after a distress levied by the landlord on the former,) that he should consider him his tenant, is nugatory and inoperative.

Joint property in the possession of one of the owners, may be seized and sold under a fieri facias against him only; and the purchaser's right would be complete to the extent of the interest of him against whom the execution issued, and he might hold accordingly.

Where F, a ship-carpenter, contracted with C to build him a sloop, for which C was to pay as the work advanced, and furnish all the materials and labour except what appertained to the ship-carpenter's work, the vessel being in F's possession, not entirely paid for, and nearly finished, was levied on by the landlord of the ship-yard as a distress for rent--Held, that F had an interest in the vessel to the extent of his carpenter's work not then paid for, liable to seizure and sale on process for the recovery of debts, or rent due by him.

One joint owner of a chattel cannot maintain replevin against another.  

COUNSEL:
R. Johnson, for the Appellants, contended upon the first bill of exceptions, 1. That admitting Carman, under his lease of the 8th of March 1813, took possession of 16 feet of the whole ground originally leased by the appellants to Flannagan, such possession did not in law amount to an eviction of Flannagan by the appellants, of those 16 feet, so as to extinguish their right to the rent.

2. By the evidence, Carman's possession under his lease of the 8th of March 1813, of the 16 feet, was before the lease stated in the avowry from the appellants to Flannagan of the 18th of August 1813, and did not interfere with Flannagan's enjoyment under his last lease, of any part of the property embraced by it; and, therefore, did not operate to suspend or extinguish the appellants' right to the reserved rent.

3. Upon the second bill of exceptions he contended, that the notification by Flannagan to Carman, after the date of Carman's lease from the appellants, operated to make Carman an under-tenant of Flannagan, and to prevent that lease from [**17]  having the effect of evicting Flannagan from any part of the property leased to him by the appellants, so as to suspend the right of the appellants to demand, under the last lease, their rent from Flannagan. Upon the first and third prayers in this bill of exceptions, no question will be raised.

4. On the third bill of exceptions, he contended, that the form of this exception admits the lease stated in the avowry, and that the rent was due at the date of the distress, &c. 1. That as Flannagan continued in possession of the property distrained at the time of the distress, he had such an estate in the property as rendered it liable to distress. 2. That if he had not such an estate, it was because he had parted with his possession, in which event he had neither a general nor special property in the vessel distrained, and could not, therefore, as is the prayer in this exception, maintain this action for the vessel.

On the first and second points, he cited Clayton vs Blakey, 8 T. R. 3. The act of 1766, ch. 14. Laidler vs Young's Lessee, 2 Harr. & Johns. 69. 4 Bac. Ab. tit. Leases, &c. (S 3,) 212.

On the fourth point, he cited 3 Blk. Com. 7. Zagary vs Furnell, 2 Campb 240.  [**18]  M'Donald vs Hewett, 15 Johns. Rep. 349. Allegre vs Maryland Insurance Company, 6 Harr. & Johns. 408. Mucklow vs Mangles, 1 Taunt. 318.

Wirt, (Attorney General of U. S.) Meredith and Evans, for the Appellee. Upon the first bill of exceptions they contended, that an eviction of part of the land demised suspended the whole rent. 3 Bac. Ab. tit. Extinguishment, (A) 105. 6 Bac. Ab. tit. Rent, 49. Co. Litt. 148. a. Gilb. on Rents, 178. Eddowes vs Niell, 4 Dall. Rep. 134. The entry of Carman was an eviction of Flannagan; and the act of Carman was the act of the appellants, his lessors. Co. Litt. 249, (note.) 217, (note 3.) Freeman vs Barnes, 1 Vent. 80. The lease to Flannagan was not a void contract under the statute of frauds, or the act of 1766, ch. 14. A parol lease from year to year for seven years, is not a lease for a year certain, but for seven years. Rob. on Frauds, 242, 243, (note.) Legg vs Strudwick, 2 Salk. 414. Birch vs Wright, 1 T. R. 378, 381, per Buller, J. A new lease of a part is no surrender of an old lease. A surrender of part is no surrender of the whole. 6 Com. Dig. tit. Surrender, (I 2,) 320. Rob. on Frauds, 258, 259, 261. 4 Bac. Ab. tit. Leases, 217. 3 Bac. Ab.  [**19]  105. It is not a new lease of any part. The avowry does not state what part was demised. The first and second issues were found for the plaintiff without any direction from the court to the jury. Rob. on Frauds, 244. Doe vs Bell, 6 T. R. 471. As to the apportionment of rent--Co. Litt. 148. Com. Dig. tit. Suspension, (E.)

On the third bill of exceptions. A landlord has a right to distrain any property on the premises, excepting that placed there for public convenience, and the benefit of trade and commerce. Gilman vs Elton, 7 Serg. & Low. 355 Here the property of sundry persons was taken as the property of one person. The vessel taken was the common property of different mechanics--if she was not the property wholly of Carman. He was responsible to the mechanics. Take him as having a joint property with Flannagan, the distress was improper. Co. Litt. 47. But the whole property in the vessel was in Carman. Woods vs Russell, 7 Serg. & Low. 310. A mere right of possession is sufficient to maintain replevin. Smith vs Williamson, 1 Harr. & Johns. 147.

Taney, in reply. Three questions arise under the third bill of exceptions on the fourth issue. 1. Was the right of property in the [**20]  vessel in Flannagan or Carman? 2. If in Carman, was she liable to distress? 3. If not liable, had the plaintiff such a property in her as could support replevin?

1. The contract was for building the vessel. Carman had the right of action to claim the property, but the right continued to reside in Flannagan. A right under a contract, and a right of property, are two different things. If any thing is to be done to the thing contracted for, it is the right of the vendor, and not the right of the vendee. Until the vessel was launched she was the property of Flannagan--not as bailee. The risk was Flannagan's if the vessel was destroyed in launching, &c. M'Donald vs Hewett, 15 Johns. Rep. 349. Woods vs Russell, 7 Serg. & Low. 310. A person mixing his property with another's is to abide the consequences resulting therefrom. It cannot exempt the property from distress for rent.

2. The property was not privileged from distress. Gilinan vs Elton, 7 Serg. & Low. 357.

3. The prayer in the third bill of exceptions went as to the fourth issue, and was intended to apply to that issue only, although it was general.

On the first bill of exceptions. The eviction is not under the [**21]  lease to Maher, but under the lease to Carman. The other leases have nothing to do with the case. The lease to Flannagan commenced in August 1811. In July 1813, Flannagan agreed to the lease to Maher. The 16 feet were not then in his possession. The new lease by parol was in 1813, for a rent of $ 600 per annum. An eviction suspends the rent from the time of the eviction. By the Statute of Frauds all leases for more than three years were leases at will. (See the statute in 1 Bac. Ab. tit. Agreement, (C) 115.) If the lease is for five years, that would be a tenancy from year to year, so long as the parties agreed. This is the case in England. But our act of 1766, ch. 14, declares that leases for above seven years shall be recorded; but it left all leases for seven years, and under, as they stood before, and did not repeal the law as to such leases. The effect of a lease from year to year, is a lease for a single year. Looking back for several years they are united, and it is a continuing contract; but looking forward it is only a lease for a year. If a lease is for three years, and the term has expired, the lessor could not distrain at common law. Rob. on Frauds, 241. The eviction by [**22]  Carman was on the 13th of March 1813. What was Flannagan's interest at that time? His right then expired in August 1813. The agreement between him and the appellants was a new lease after August 1813, so that no rent could be exacted which fell due in August 1813, because of the eviction. But that eviction could not operate upon the new lease, which commenced in August 1813, at the expiration of the former lease. When he was evicted he had no interest. He got a new interest under the new lease. Rob. on Frauds, 242, (and note.) Here it cannot be presumed that the 16 feet were included in the new lease, because they had been leased to Carman. An agreement to continue must be the act of both parties. Under the new lease Flannagan never was in possession, nor was to be, of the 16 feet leased to Carman. The presumption of a continuing lease is where the whole property remains in the possession of the tenant. The lease to Carman for the 16 feet was notice to Flannagan. Acceptance of a new lease for a part, is a surrender of the old lease as to all except that part. 4 Bac. Ab. 212, 217.

Curia adv. vult.  

JUDGES:
The cause was argued at the last June term before BUCHANAN, Ch. J. and STEPHEN,  [**23]  and DORSEY, J.  

OPINIONBY:
DORSEY 

OPINION:

 [*320]  DORSEY, J. at this term, delivered the opinion of the court. The correctness of the opinion given by the county court on the first bill of exceptions, depends entirely on the existence of a fact, of which, to view it in the aspect most favourable to the appellee, there is considerable doubt. By the demise of the 18th of August 1811, Flannagan held of the appellants, by parol, for five years, the whole of the wharf property alluded to in any part of the proceedings in this cause. On the 8th of March 1813, the appellants leased to William Carman a part of it fronting 100 feet on the water; and on the 29th of the succeeding July, by the consent of Flannagan, made a lease of that part of said wharf called The New Wharf, to Martin F. Maher, for 99 years renewable forever; and according to the testimony of the appellants, as stated in this bill of exceptions, he, Flannagan, agreed to rent the residue of said wharf in his possession, at the rate of $ 600 per annum. Whether, in the opinion of the court, according to the weight of testimony, this contract of July 1813, is to be considered as a surrender of all those [**24]  parts of the wharf only which were leased to Maher, and an apportionment of the rent for the residue, or as a surrender of the whole wharf, and an acceptance by Flannagan of a new lease of all that part of the wharf not included in Maher's lease, is wholly immaterial in deciding on the prayer made to the county court. Before the court could legally give the instruction prayed for by the appellee, they must admit the truth of the testimony offered by the appellants, and of the testimony given by the appellee, which may operate in the appellants' favour, and the existence of all material facts 

 [*321]  reasonably deducible therefrom, even though contradicted in every particular by the testimony on the part of the appellee. Upon no other principle can the case be withdrawn from the consideration of the jury, who alone are competent to decide on facts of which contradictory evidence may be offered. The agreement of the 29th of July 1813, as proved by the appellants, is therefore a concessum in the cause. If there were no proof to show that the possession of Carman's lot was out of Flannagan at the time of that agreement, then were the court below justified in [**25]  the opinion they have given. But if there be evidence from which a rational mind could infer such a fact, the county court have invaded the province of the jury, and their judgment must be reversed. The proof on the part of the appellee, is that Carman, in pursuance of his lease, entered upon his 100 feet of ground, erected a shop on 16 feet thereof, and enclosed the whole with a fence. The appellants prove that this was done about the time of the lease to Carman. When this testimony is coupled with the agreement of the 29th of July 1813, in which the word possession is used, for no other purpose that is discernible, unless it be to exclude from the demise to Flannagan the lot leased to Carman, can it be said that there is no evidence admissible to the jury to show possession in Carman at the time of such agreement? He who would refer to the case of Laidlaw v. Organ, 15 U.S. 178, (which however it must be admitted extends the power of a jury to the utmost verge of rationality,) would not hesitate in returning a negative answer to this question.
The second bill of exceptions presents three separate prayers on the part of the appellants,  [**26]  all of which were refused by the court. In the decision on the first and third, the counsel of the appellee have stated their entire acquiescence; and of that made on the second there is as little cause of complaint. Whether there was an eviction or not depends upon all the circumstances of the case, and not upon the two isolated facts which have been selected as the basis of the prayer. Flannagan was not bound to resist by force the acts of Carman in taking possession of the lot demised to him, and his notifying Carman, after the distress was levied, that he should consider him his tenant, did not make him so, or release him from his 

 [*322]  covenants to the appellants; and upon no principle of law or justice should an act so nugatory and inoperative be construed to divest Flannagan of an unquestionable legal right.
The only question designed to be raised by the third bill of exceptions is, whether Flannagan had such an interest in the sloop, as could be the subject of a distress for rent. By the refusal to give the instruction demanded by the appellants, the court below have determined, that such a distress was unlawful; and from this decision [**27]  an appeal has been wisely taken. Even let it be conceded that all the materials and work of the blacksmith, the ship-joiner, the painter and rigger, were the general property of Carman, and that he had a like interest in the materials and workmanship of the carpenter to the extent of his payments made on the sloop, and also that the shipyard of Flannagan, for reasons of public policy, and for the encouragement of commerce, protects from distress the property of third persons, placed there in the ordinary course of business; yet is it not a proposition equally undeniable, that Flannagan had the same property in his materials and labour on the sloop, to the extent of the balance due to him therefor? The privileges of his ship-yard cast around his interest no protection, and it remained liable to distress in the same manner that his separate property would have been. Joint property, in the possession of one of the owners, may be seized and sold under a fieri facias against him only, and the purchaser's right would be complete to the extent of the interest of him against whom the execution issued; and he might hold possession accordingly. In the present case, if under the [**28]  Stat. of 17 Car. II, ch. 7, the jury be required by the appellants to ascertain the amount of property distrained, they must have limited its value to the balance due from Carman to Flannagan; and if declining to proceed under this statute, a general judgment for a return had been rendered, Carman, by application to a court of equity, would have recovered the sloop, upon his paying to the purchaser the balance due for it according to his contract.
Flannagan's interest being adjudged distrainable, his right to maintain replevin as the bailee of Carman, so much relied on in the argument, necessarily falls to the ground--one joint owner of a chattel being incompetent to maintain replevin 

 [*323]  against another. And upon no principle can the rights of the bailee, in such a case, be extended beyond those of his principal.
The case of Woods vs Russell, 5 Barn. & Ald. 942, urged by the appellee's counsel as conclusive upon the case before us, is clearly distinguishable from it. Here no act was done by Flannagan which could be tortured into an admission that the entire property in the sloop should pass to Flannagan, but upon the payment [**29]  of the whole price stipulated to be paid for her. There the ship-builder was privy to the chartering of the ship by him for whom she was built, assented to the measurement thereof, and gave the usual certificate of building, &c. to authorise the granting to him a register, which issued accordingly, and could only have been obtained by making an affidavit of ownership. These facts create an irresistible implication, that the builder consented that the general property in the ship should be considered from that time as being in the defendant. And in that light were they viewed by the court.
The rights of the party, for whom any article is built agreeably to contract, is very strongly marked out in Mucklow vs Mangles, 1 Taunt. (Eng.) 318. Royland contracted to build a barge for Pocock, and received from time to time, as the work proceeded, £  190, the value of the barge. When it was nearly completed, Pocock's name was painted on the stern. Royland became bankrupt before its completion. The court held that the barge was not the property of Pocock until finished; that it was a quite different thing from a contract of sale. And Lawrence, Justice,  [**30]  stated that no property vested, till the thing is finished and delivered. Such a general rule, though applicable to the case in which it was pronounced, would be productive of much inconvenience, and great injustice, if applied to the facts before us. There the contract was simply to build the barge. No agreement to pay the stipulated price as the work proceeded--nothing to specify the particular barge to which the contract or money paid should attach --nothing by which its identity could be ascertained. The delivery of any other barge would have been strictly a compliance with the contract. Not so here; the sloop was to be 

 [*324]  paid for "as the work advanced," all the materials and labour, except what appertained to the ship-carpenter's work, were to be furnished and paid for by Carman. The contract, therefore, attached on and identified that particular sloop; the delivery of no other would have been by Flannagan a performance of his contract. Carman had, therefore, at the time of the distress, a general property in the sloop equivalent to the money paid, and labour and materials by him found on account thereof, but no further. The residue of the property therein [**31]  remained in Flannagan, liable to seizure and sale, on process for the recovery of debts or rent due by him; and by no proceeding in a court of law could Carman recover possession of the sloop until payment, or tender of payment, of the whole price specified by the terms of his contract.
The opinion given by the county court on the second bill of exceptions is assented to; but that delivered by them on the first and third bills of exceptions is dissented from.
JUDGMENT REVERSED, AND PROCEDENDO AWARDED.  

11 of 23 DOCUMENTS 

CATON vs. SHAW & TIFFANY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

2 H. & G. 13; 1827 Md. LEXIS 38 

June, 1827, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court. Action of assumpsit. The first count in the declaration stated, that on the 29th of July 1817, in consideration that the plaintiffs, (the appellees,) at the special instance and request of the defendant, (the appellant,) would lend and advance to Abijah Fenn such sum of money as he should have occasion for, and require of the plaintiffs not exceeding $ 500, he the defendant undertook and promised the plaintiffs to stand security, and be accountable to them for such sum of money as they should lend and advance to Fenn. The plaintiffs averred that they, confiding in the said promise and undertaking of the defendant, did on the 31st of July in the year aforesaid, lend and advance to Fenn $ 300, which he then had occasion for, and required of the plaintiffs. That Fenn, although requested, had not paid to the plaintiffs the said $ 300, except $ 23 77 on, &c. and $ 50 on, &c. but to pay the $ 300, except the said sums, &c. he hath refused, &c. of which the defendant had notice on the 9th of March 1822, &c. Another count stating the same as above, and that Fenn had become an insolvent debtor, &c. The defendant pleaded non assumpsit, and issue was joined.  [**2]  

1. The plaintiffs at the trial gave in evidence the deposition of Abijah Fenn, taken on the 22d of January 1825, by consent of parties, to be read in evidence, subject to all legal objections. He deposed, that being in want of money, on or about the 29th of July 1817, he called on Caton, the defendant, to borrow some, having for many years had, as he still has, dealings and transactions with him; that Caton informed the deponent that he could not lend him any at that time, but that he was desirous of aiding him, deponent, and if deponent could obtain the money from any other person, he, Caton, would become deponent's security for the payment of it. Whereupon the deponent thinks that he informed Caton that the plaintiffs, Shaw & Tiffany, would lend deponent money upon his, Caton's security. Whereupon Caton wrote and signed the letter or instrument of writing hereto annexed, (marked A,) and delivered it to the deponent, which instrument of writing the deponent carried and delivered to the plaintiffs, as deponent thinks on the day of its date. That Mr. Shaw, one of the said firm, was present on the delivery of said instrument of writing, but deponent does not recollect whether Mr.  [**3]  Tiffany, the other partner, was present or not. That on receiving the said letter Mr. Shaw said that he knew Mr. Caton by hearsay, and as the deponent understood, said that he would not have any thing to do with Mr. Caton in transactions of money, or something like those expressions, which deponent does not pretend to state exactly, as he cannot recollect. That on the next day, or day afterwards, or within a few days, as near as deponent recollects, deponent called again at the store of the plaintiffs, when both said partners were present, and upon deponent's stating to them his want of money to take up a note in bank, becoming due, they the plaintiffs opened a drawer and showed deponent some money in bank notes, which they informed deponent that they were not making use of, it being principally of western country banks, and which they had laid by, and which they expected would come in play. The money was under par, and the plaintiffs told deponent, that if deponent would make use of said money that he might have it, and pay them at some future day; and they stated to deponent, that if he did not use the money he might return it and be credited to its amount. That deponent took the [**4]  money, but he does not recollect the exact amount. He thinks the amount was about $ 250. At the time of receiving said money deponent signed and gave to the plaintiffs the promissory note hereto annexed for $ 300, at 90 days, which deponent believes included an old balance previously due to them. That deponent carried the money to Mr. John Perkins, and asked him if he could manage to take up the note in bank, on which he and deponent were responsible, without discounting said money. Whereupon Perkins told deponent that he thought he could. Deponent went immediately to the eastern shore on other business, and on his return found that Perkins had procured it to be discounted at some exchange office. Deponent never ascertained how he discounted it. Deponent saith, that on the day of delivering the said letter or writing, the plaintiffs did not deliver to deponent any money. Deponent saith that he has no recollection of having made payment of any part of said money; but on seeing the sums endorsed on the promissory note hereto annexed, he presumes that he had paid those sums, and those only. Deponent saith that he obtained a final release under the insolvent laws of this state in Baltimore [**5]  county court, after the date of the above mentioned letter of Mr. Caton, and the said promissory note. Deponent saith he never asked plaintiffs to return Mr. Caton's said letter. Questions on the part of the defendant--1. Was there any conversation between you (deponent,) and the plaintiffs respecting Mr. Caton's letter referred to in the deposition, on the day of your receiving the money? Answer. Deponent does not recollect that there was any thing said on that day about Mr. Caton, or his being security. 2. Did the plaintiffs lend you the money upon Mr. Caton's guarantee contained in his said letter? Answer. Deponent saith that he did not take it that they did. 3. Why do you draw this conclusion? Answer. Because of Mr. Shaw's declaration at the time of deponent's delivering him the letter as above stated by deponent. The plaintiffs also read in evidence the letter of the defendant attached to the said deposition marked (A)

Balto. 29 July, 1817.

Messrs. Shaw & Tiffany,

Sirs--Mr. Abijah Fenn tells me that he is about to loan from you five hundred dollars, and wishes me to state that I will become his eventual security for the payment. This I am willing to do, as I believe [**6]  Mr. Fenn will be very punctual, having found him so on similar occasions.

I am, respectfully, yrs.

Rd. Caton.

Also the note thereto attached, and referred to in said deposition:

Baltimore, July 31st, 1817.

For $ 300.

Ninety days after date I promise to pay Shaw & Tiffany, or order, three hundred dollars, for value received.

Abijah Fenn.

Witness. G. N. Taylor.

Endorsed, "Received Jany. 19, 1818, $ 23 77, on ac. within. March 25, 1818, Rec'd. $ 50.

Shaw & Tiffany."

And also evidence that Abijah Fenn petitioned for the benefit of the insolvent laws of this state in August 1820, and obtained his final discharge upon said petition in April 1821. Also gave in evidence the following letter:

"Baltimore, Feb. 27, 1822.

Richd. Caton, Esq.

Dear Sir,--Mr. Abijah Fenn having borrowed a sum of money from us on the strength of your written guaranty, which we hold, we are compelled to address you on the subject of payment by the failure of Mr. Fenn, who has lately taken the benefit of the insolvent law. The balance remaining due us is near $ 250, and we wish the same paid or secured to us as soon as your leisure will permit. If [**7]  payment is not convenient to you at present, we will allow a further time on receiving a bond with security.

Very respectfully, yr. ob. servt.

Shaw & Tiffany."

Which letter is admitted to be in the handwriting of William C. Shaw, one of the plaintiffs, and to have been received by defendant on or about the day of its date. And also that the trustee of Fenn, under and by virtue of the said insolvent laws, had received no funds of Fenn, and had paid no dividend to his creditors. The plaintiffs also produced and offered in evidence by Charles N. Taylor, that he was the clerk of the plaintiffs at the time the loan was made by the plaintiffs to Abijah Fenn, and the letter of Caton to the plaintiffs, and the note of Fenn in their favour attached to the deposition of Fenn were respectively given. The witness on cross-examination also testified that the money loaned to Fenn was western country bank notes, meaning to include bank notes of Frederick county banks in this state. That the plaintiffs were not in the practice of receiving lots of country money which averaged a discount of more than five per cent. That some of the money may have been more than five per cent. discount,  [**8]  and some of less. That witness does not think that the money loaned to Fenn would average a discount of more than five per cent. but he thinks that it would average from two to five per cent. discount. That the plaintiffs were in the habit of occasionally passing off said country money at par, in the course of their business, and generally reserved it for the purpose of passing it at par, although generally they could not pass it at par. Witness has no recollection of being present when the letter of Mr. Caton, which is attached to the deposition of Mr. Fenn, was presented to the plaintiffs. But witness states that he knows that Fenn had applied to the plaintiffs to borrow money before he brought Mr. Caton's said letter to the plaintiffs; that the plaintiffs refused to lend Fenn money without some security besides himself. Witness states that he repeatedly saw the said guaranty or letter of Mr. Caton in possession of plaintiffs; that they kept it in a small trunk of theirs among promissory notes due to them, and other papers. Witness also stated that he witnessed the note given by Fenn to the plaintiffs. Upon the foregoing evidence the defendant prayed the court to direct and instruct [**9]  the jury, that the plaintiffs were not entitled to recover, and that they must find a verdict for the defendant. Which direction and instruction the Court, [Hanson and Ward, A. J.] refused to give. The defendant excepted.

2. The defendant then prayed the court to instruct the jury, that if they believed from the evidence that the money loaned to Abijah Fenn was country bank notes, which were at a greater discount than the legal interest on the sum loaned for ninety days, that then the loan was usurious, and the contract, both between the plaintiffs and Abijah Fenn, and the plaintiffs and the defendant, is void. Which instruction the court refused to give; but instructed the jury, that if they believe the testimony of Abijah Fenn, the contract therein referred to is not usurious. The defendant excepted. Verdict and judgment for the plaintiffs; and the defendant appealed to this court.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

F applied to S & T for a loan of money, which they refused without security. He then brought to them the following letter from C: "Mr. F tells me that he is about to loan from you five hundred dollars, and wishes me to state that I will become his eventual security for the payment. This I am willing to do, as I believe Mr. F will be very punctual, having found him so on similar occasions." Addressed to S & T. On its delivery they said they would have nothing to do with C in money transactions. The letter being left with them, and their refusal not communicated to C, in a day or two after F again applied to them for money; they lent him the sum of $ 300, nothing being then said about the guaranty; they however retained it, placed it away among their evidences of debts due them, and took from F his note for the amount of the loan--Held, that there was evidence from which the jury might infer, that S & T accepted C's letter as a guaranty for their loan to F, and that said letter was a conclusive guaranty, for the eventual repayment of a loan not exceeding the sum mentioned in it.

Where one makes a mere overture or offer to guarantee the transactions of another, he is entitled to notice that it was regarded as a guaranty, and meant to be accepted as such to convert his offer into a conclusive guaranty.

A loan at par of bank notes passing at from 2 to 5 per cent. discount, unexplained by circumstances, would be usurious; but where the borrower was at liberty to return them to the lender at their par value, and so exempt himself from loss, such a transaction would not be deemed usurious, unless that privilege was a mere cover to cloak a usurious design.  

COUNSEL:
Raymond and Latrobe, for the Appellant, contended, 1. That there was no guaranty in this case, because the plaintiffs below, when the letter of the defendant was presented to them, refused to accept it as such. 2. That the transaction between the plaintiffs and Fenn was [**10]  usurious, and therefore the guaranty was void.

1. There was no notice given to the defendant of the acceptance of the guaranty. Lawrason v Mason, 3 Cranch, 492. Russell v Clark's Ex'rs. 7 Cranch, 91. M'Iver v Richardson, 1 Maule & Selw. 557. 2 Stark. Evid. 648. Symmons v Want, 3 Serg. & Low. 389. Creager v Higginson, 1 Mason's Rep. 323. Russell v Perkins, Ib. 368.

2. There was no evidence of a guaranty. If it is a guaranty it is to be strictly construed. 2 Stark. Evid. 614. King v Baldwin, 2 Johns. Ch. Rep. 554. Ludlow v Simond, 2 Caine's Cas. 1. The guaranty was of money not subject to a discount. Here the money loaned was at a considerable discount. Part of the note was for money due from Fenn to the plaintiffs before the loan under the guaranty. It is therefore claimed to be a guaranty as well for the money loaned, as also for an old debt not contemplated to be guaranteed.

3. It was a usurious contract, and therefore void. Doe v Barnard, 1 Esp. Rep. 11. Pratt v Willey, Ib. 40. Rich v Topping, Ib. 176.

4. The direction of the court to the jury was erroneous. It should have been left to the jury for them to say whether or not the money loaned was at a discount,  [**11]  &c. Massa v Dauling, 2 Stra. 1243. Tate v Wellings, 3 T. R. 531. Hammett v Yea, 1 Bos. & Pull. 155. Rich v Topping, 1 Esp. Rep. 176.

Hinkley, for the Appellees. 1. The loan of the money is evidence of the acceptance of the guaranty. When the letter was delivered there was but one of the partners present. There was no absolute refusal by him. When both were present the next day, the money was loaned. The substantial point in question is, was the money loaned upon the guaranty? One partner cannot loan the funds of the partnership. Fell on Guar, 64, s. 25. Here the guaranty is retained by the plaintiffs; and it is natural to suppose they would loan upon the guaranty, than upon Fenn's responsibility only. There is no distinction between a general and special guaranty. As a general rule there is no necessity to give notice of the acceptance of a guaranty. It is only necessary, as in the case of M'Iver v Richardson, 1 Maule & Selw. 557, which was considered as a mere overture to guarantee; but not where it is a conclusive guaranty. Fell on Guar. 51. Com. on Cont. 207, (Ed. 1826.) A guaranty is to be construed most strongly against the guarantor. Stadt v Lill, 9 East, 348. Rogers v Warner,  [**12]  8 Johns. Rep. 119. Lawrason v Mason, 3 Cranch, 492. Grant v Redsdale, 2 Harr. & Johns. 186. Ferris v Walsh, 5 Harr. & Johns. 306. If it is a sufficient guaranty, and the acceptance is averred in the declaration, and the goods, &c. are delivered, it is implied as done at the request of the guarantor, and no notice is necessary. If notice is necessary, it is to be presumed from the evidence. But notice was not necessary. Warrington v Furbor, 8 East, 242. Swinyard v Bowes, 5 Maule & Selw. 62. Fell on Guar. 200, 217, 140. Allen v Rightmere, 20 Johns. Rep. 365.

2. The promissory note given by Fenn was payable at 90 days, without interest. This was perhaps to make up the difference in the value of the country bank notes which were loaned. The defendant prayed an absolute direction of the court to the jury in the second bill of exceptions. This prayer the court refused to give. What is the meaning of country bank notes? There were many banks incorporated by this state in the counties of Frederick, Washington and Allegany. These may be said to be country banks. The legislature by the act of 1818, ch. 191, declared that bank notes should not be passed for less than their nominal value.  [**13]  Bank notes have always been treated as money. Chitty on Bills, 425, (Phil. Ed.) Miller v Race, 1 Burr. 457. Fleming v Brook, 1 Sch. & Lef. 318. Knight v Criddle, 9 East, 48 Towson v Havre-de-Grace Bank, 6 Harr. & Johns. 47. Tate v Wellings, 3 T. R. 531. Maddock v Rumball, 8 East, 304. 7 Bac. Ab. tit. Usury, (C) 190. Cutler v How, 8 Mass. Rep. 257. Tyson v Rickard, 3 Harr. & Johns. 109. Coombe v Miles, 2 Campb. 553. Pike v Ledwell, 5 Esp. Rep. 164. There is no criterion for judging of what is the discount of particular descriptions of bank notes. It varies according to the notions of lottery brokers, &c. The verdict ought not to be disturbed--interest is given in the nature of damages. Chitty on Bills, 538.  

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

OPINIONBY:
ARCHER 

OPINION:

 [*21]  ARCHER, J. delivered the opinion of the court. It is contended that the court below should, upon the first bill of exceptions, have directed the jury that the plaintiffs were not entitled to recover, because the guaranty was not accepted by the plaintiffs below; but that the sum advanced must have been loaned solely upon the responsibility of Fenn, in whose [**14]  favour the guaranty was given. This must depend upon the fact whether there be any evidence from which the jury might have been justified in drawing the inference that the guaranty was accepted. If there be any, the court below were right in refusing the direction, as it is the province of the jury to judge of the weight and sufficiency of evidence, and only for the court to determine whether there be any evidence. Now there were circumstances from which the jury might have been justified in drawing the inference that the guaranty was accepted. The refusal of the plaintiffs to lend money without security; their willingness, previously expressed, to lend on Caton's security, (which facts are to be inferred from the evidence of Fenn;) their loaning within a short time after the receipt of the guaranty; their retaining it, and placing it away with promissory notes and evidences of debts due them--These were all facts proper to go the jury, for the purpose of showing the loan of the money on the security and responsibility of Caton's letter. It is true that Shaw, when the letter was communicated to him, was understood to say, that he would have nothing 

 [*22]  to do [**15]  with Caton in monied transactions, or to have used expressions conveying some such idea. This seems to have been the expression of the first impression upon the presentation of the letter, which not having been communicated, as appears by any evidence in the cause, to Caton, could not preclude him, or him and his partner Tiffany, from advancing the money two days after upon the strength of the guaranty. It was retained by them, and the money loaned on the second day afterwards; they were not bound to accept immediately, but they might have kept the letter for inquiry and consideration, notwithstanding the expression of Shaw on its first receipt. Although nothing was said, when the money was loaned, of the lending upon the security of Caton's letter; yet as the letter was retained, and the money actually advanced, it was properly a question, under all the circumstances, to be submitted to the consideration of the jury. But it is said that notice of acceptance, and notice of the extent of advances by the plaintiffs, should have been given to enable them to recover against the defendant; and this objection is grounded on the idea that this is a mere overture or [**16]  offer to guarantee. If it is to be considered as a guaranty, there is an end of the objection. None of the authorities in such an event deemed such notice at all necessary. In the case of an offer to guarantee, it was determined in M'Iver v Richardson, 1 Maule & Selwyn 563, that notice should be given, that it was regarded as a guaranty, and meant to be accepted, or that there should have been a subsequent assent, on the part of him who made the overture, to convert that, which was merely intended as an offer, into a conclusive guarantee. This doctrine has been adopted in New York. This then being the law, we are brought to the question, whether the letter of Mr. Caton, which furnishes the foundation of this suit, is to be considered as an offer, or as a guaranty? We are at no loss here, as were the court, in the case of M'Iver v Richardson, to ascertain the circumstances which gave rise to the letter, or under what representation he signed it. He was explicitly informed, that upon his security, the plaintiffs would lend the money; and declaring his willingness to go the security to enable Fenn to procure the loan, he addresses, under these circumstances,  [**17]  the letter which is the subject of controversy.

 [*23]  He was then perfectly aware, that upon his letter the money would be obtained. He was apprized before he wrote it that it would be accepted, and he had declared his determination to become Fenn's security. With this information, and in this spirit, he prepares and delivers the letter. Its language appears to be very explicit. We will advert to it. "Mr. A. Fenn tells me that he is about to loan from you five hundred dollars, and wishes me to state that I will become his eventual security for the payment; this I am willing to do, as I have found him punctual on similar occasions." The substance of the letter is this: "I will become his eventual security for payment." Here is then no conditional engagement, but a conclusive undertaking. In M'Iver v Richardson, the court considered the paper there offered as a proposition only leading to a guarantee. The words do not here import that if application were made to him he would guarantee; it required no intimation that it was regarded as a guaranty, for it spoke so intelligible a language that it could not be mistaken; and it is shown by the evidence that it conveyed [**18]  to the plaintiffs the idea intended, which was, that he would be security for money loaned to the amount mentioned in the letter.
The second bill of exceptions is founded on the idea that the loan of bank notes, at a greater discount than the legal interest on the note for the time it had to run, was usurious. There cannot be a question but that the loan of bank notes passing at from 2 to 5 per cent discount, and passing them in such loan, notwithstanding such discount, at their par or nominal value, unexplained by circumstances, would be usurious, and that it would render the contract between Fenn and the plaintiffs void; for the courts will not permit the statute to be evaded by any devices, however subtle or artful, but will pursue the transaction through all its ramifications, for the purpose of discovering whether a loan of money at an exorbitant interest, and an evasion of the statute, has not been the real object and design of the parties; and they must be governed by such design or intention, when it shall have been collected from all the circumstances. No usurious intent can be here attributed to the plaintiffs. They take Fenn's note for the par value of the [**19]  bank notes loaned, but at the same time inform him, that if he 

 [*24]  should not use them he was at liberty to return them, and he should be credited at their par value. From which the inference is clearly deducible, that they had no intention that they should be passed for less than their nominal amount; this fact, taken in connection with their habit, as proven, of taking such notes to be passed at par, evidence a clear manifestation of the nonexistence of any usurious design. It was always in the borrower's power to exempt himself from a loss upon these notes by returning them to the plaintiffs, who had stipulated, whenever this was done, to credit him with their nominal amount. This he did not think proper to do, but through his agent passed them off at a discount; having done so, he could not rid himself from the payment by alleging usury in the transaction, unless indeed this privilege had been a mere cover to cloak the usurious design of the parties, for which there is not the slightest ground for inference or belief. We conceive, therefore, that no error exists in either direction of the court.
JUDGMENT AFFIRMED.  

12 of 23 DOCUMENTS 

ROBERTSON vs. MILLS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

2 H. & G. 98; 1827 Md. LEXIS 53 

June, 1827, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Saint Mary's County Court. Action of assumpsit on a promissory note drawn by Rhoads and Mills, in favour of the plaintiff, (now appellant,) on the 24th of May 1821, for $ 171, payable 78 days after date; and also for money had and received. The action was brought against Rhoads & Mills, but Mills only was arrested. He pleaded non assumpsit, on which issue was joined.

At the trial the plaintiff swore Josiah Turner, a competent witness, who deposed that he had received letters and bills from Willard Rhoads, and that he had seen said Rhoads write, and that the signature to the said promissory note, filed in this cause, was in the handwriting of Rhoads; that he had known the defendant and Rhoads for several years, and in 1820 they had a compting room in Baltimore, and were partners in the mercantile business, and were selling goods together when he last saw them in Baltimore, which was just previous to the date of the said note; that he had heard both Rhoads and the defendant say they were partners in the mercantile business, both before and after the date of the said promissory note. The plaintiff next swore Philip Turner, who stated that at the date of the said promissory [**2]  note, Rhoads and the defendant had a compting house on Light-street wharf, Baltimore, in which there were goods, and that he had seen Rhoads and the defendant, both before and after the date of the execution of said promissory note, in the compting house aforesaid, engaged in purchasing and selling goods. The defendant then offered to swear as a witness the said Willard Rhoads, to prove that the consideration of said promissory note was for the peculiar and exclusive benefit of him Rhoads, and that the said note was given to secure a debt due by him on his own account, (and not from the firm of Rhoads and Mills,) to the plaintiff; and that when he signed the said promissory note he informed the plaintiff that he was not authorised to sign the defendant's name to it. To the admissibility of which last mentioned testimony the plaintiff objected; but the Court, [Stephen, Ch. J. and Key and Plater, A. J.] overruled the objection, and permitted the said Rhoads to be sworn, and his testimony aforesaid to go to the jury. The plaintiff excepted; and the verdict and judgment being for the defendant, the plaintiff appealed to this court.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

In action against one partner, by the payee of a partnership note, to recover the amount thereof, the other partner is a competent witness for the defendant, to prove that the consideration of said note was for the witness's exclusive benefit, given to secure a debt due by him on his own account; and that when he signed the note he informed the plaintiff that he was not authorised to sign the defendant's name to it.  

JUDGES:
The cause was argued before [**3]  BUCHANAN, Ch. J. and EARLE, and MARTIN, J.  

OPINION:

 [*100]  Magruder, for the Appellant, contended, that Rhoads was an incompetent witness to prove the facts for which he was offered and admitted to prove. He cited Owings & Piet vs Low, 7 H. & J. 124. 2 Wheat. Selw. N. P. 870; and Goodacre vs Breame, Peake's N. P. 174.
C. Dorsey, for the Appellee, cited Ridley vs Taylor, 13 East 182. 1 Phill. Evid. 54.
JUDGMENT AFFIRMED.  

13 of 23 DOCUMENTS 

BETTS, et ux. vs. THE UNION BANK OF MARYLAND.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

1 H. & G. 175; 1827 Md. LEXIS 12 

June, 1824, Argued 

June, 1827, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from the Court of Chancery. The complainants in that court, (now appellees,) filed their bill on the 25th of September 1820, against the appellants, and Edward Priestly, in which it is stated that on the 24th of March 1819, Betts, (one of the defendants and appellants,) being indebted to the complainants in the sum of $ 1700, upon two promissory notes, one for $ 700, dated the 22d of February, and the other for $ 1000, dated the 25th of February then last passed, payable 60 days after their respective dates, both of which notes were drawn by Priestly, one other of the defendants, in favour of Betts, and by him endorsed, and discounted by the complainant for the sole use and accommodation of Betts, at their banking-house, in consideration that the complainants had agreed to extend the accommodation of the said notes for the term of three years from the 24th of March 1819; and to accept of a security on the property of Betts in lieu of Priestly's name and responsibility; and for the purpose of more effectually securing the payment of the said sum of money, and interest thereon, Betts made and executed a deed of mortgage or trust, dated the 24th of March 1819, and thereby conveyed [**2]  to the complainants, and their assigns, all that lot of ground in the city of Baltimore, No. 111, being part of a tract of land called Todd's Range, &c. with a proviso that the said conveyance should be void in case Betts, his heirs, &c. should, before the expiration of the term of three years from the date thereof, pay to the complainants the said sum of money, &c. But if default should be made by Betts, then the conveyance was declared to have been made in trust; and the complainants might after notice, sell the said lot of ground, &c. to satisfy and pay the said debt of $ 1700, or so much as should remain due, and should in the meantime renew the said notes at the end of every 60 days, and pay the regular interest or discount upon the same, &c. The bill further states, that a short time previous to the execution of the said mortgage to the complainants, Betts called on Beale Spurrier, a conveyancer, and requested him to draw a deed of a lot of ground which belonged to him, Betts, and on which his dwelling-house stood, (being the same lot of ground herein before referred to,) and to leave blanks for the name of the grantee, and the amount of consideration. That on the 17th of March [**3]  1819, Betts called again on Spurrier, and requested the blanks to be filled up, and the name of Elizabeth Ball inserted as grantee, which having been done, he executed the conveyance, and requested Spurrier to let the transaction remain private, stating that he was about to be married to the said Ball; that she was young, and he had thought proper to make this provision for her without her knowledge. That some days afterwards Spurrier was requested by Priestly and Betts, (but at different times,) to prepare some securities on the property of Betts, to the complainants, for a debt due to them; but upon discovering that a part of the property offered to be mortgaged was the same that had been a few days before conveyed to E. Ball, Spurrier observed to Betts that before he could consent to be privy to the execution of the mortgage, he must be satisfied that the previous conveyance to E. Ball had been cancelled, or else he must communicate its existence to the parties interested. Betts replied that it should be cancelled, that he had it in his possession, and that E. Ball had no knowledge of it. He then brought the deed to Spurrier and left it with him. That Spurrier, in pursuance of directions [**4]  given to him by Priestly and Betts, prepared two several deeds of mortgage or trust--one on a parcel of ground belonging to Betts, on the south side of Queen-street, for the sum of $ 4000; and a second on the lot herein before mentioned, on the N. side of said street, being the same conveyed to E. Ball for $ 1700. Betts then requested Spurrier to prepare a deed from him to E. Ball for his reversionary interest or equity of redemption in the lot to be mortgaged for $ 1700. Which deeds having been prepared, were executed by Betts on the 24th of March 1819. It was then mentioned by Spurrier, that the first deed to Miss Ball should be destroyed. Betts repeated that she had no knowledge of it; that he wished to retain possession of it, in order that he might have it recorded in preference to the second one, in the event of his being able in the course of six months (upon which he confidently calculated,) to discharge the bank's lien, as in that case he wished his intended wife to have the benefit of the first conveyance; and pledged his honour that it should not be used unless his expectations to pay should be realized; and that he would request the bank to withhold the mortgage from record [**5]  until six months should be nearly expired. In consequence of which said declarations and pledges made by Betts, Spurrier permitted him to take and retain the first deed to Miss Ball, and so far confided in his veracity and honour as to keep the complainants in ignorance of its existence, and of the circumstances herein related. The bill then charges, that Betts not regarding his said several promises and undertakings to Spurrier, but fraudulently intending to injure and deceive the complainants, lodged in the office of record the first deed to Miss Ball, with whom, either immediately before or shortly afterwards he intermarried. That the said notes have both become due and remain unpaid, Betts having totally neglected and refused to pay or to renew the same, and pay the regular and usual interest, &c. although often demanded by the complainants, still refuses to renew the said notes, and pay the said discount, &c. as is provided by the deed of mortgage. Prayer, that the deed to Miss Ball, (now Mrs. Betts,) may be utterly rescinded, annulled and set aside; and that the mortgaged premises may be sold for the payment of the sum of money in the said mortgage deed mentioned, &c. and for [**6]  further relief, &c.

The answers of Betts, and Elizabeth his wife, admit the debt due to the complainants, and the deed of mortgage to them as stated in the bill, but they insist that the term of credit given and allowed by the said deed had not expired, and that the complainants were not entitled to ask for a foreclosure of the same. The answer admits that Spurrier was requested by Betts, a short time before the deed of mortgage to the complainants, to prepare a deed for the purpose of conveying the lot of ground which is mentioned in the said mortgage deed, and to leave the name of the grantee, and the consideration in blank, and that afterwards Betts called on Spurrier, and desired him to insert the name of E. Ball, now the defendant E. Betts, as the grantee in the said deed. But Betts utterly denies that he requested Spurrier to keep the said transaction a secret, or told him that as E. Ball was young he had thought proper to make such a provision for her without her knowledge, or that any conversation of that nature ever occurred between Betts and Spurrier. The defendants aver, that the said deed, executed and delivered by Betts to E. Ball, (his now wife,) was executed and [**7]  delivered to her with her full knowledge, approbation and consent, and in consequence of an agreement previously entered into by her and Betts upon the eve of their marriage, for a marriage settlement for her, which agreement was made in February or the beginning of March 1819, and in consequence of which agreement the said deed to E. Ball was executed by Betts. He denies that Spurrier told him it would be necessary he Spurrier, should be satisfied that the previous deed made to E. Ball had been cancelled, or else he would communicate the same to the parties; and he also denies that he promised the said deed should be cancelled, or that he had the deed in his possession, and that E. Ball had no knowledge of it, or that any conversation of such a nature occurred. The defendants aver that the said deed was executed and delivered anterior to the execution of the deed for the same property to the complainants. They deny that Betts left the said deed with Spurrier with the knowledge or consent of E. Ball. They admit that Betts executed the two mortgages referred to in the bill, to the complainants. Betts denies that he ever pledged his honour, or promised Spurrier not to make use of the [**8]  deed to E. Ball; and Elizabeth avers, that she does not believe he did, &c. and if he did, it cannot bind her, or affect her rights, where the same was done without her knowledge or consent. They aver that Elizabeth refused to marry Betts until the said deed from him to her was regularly executed.

The answer of Priestly admitted, and confessed all the matters and facts stated in the bill of complaint to be true as there stated, and that he believed the conveyance to E. Betts, the wife of Betts and co-defendant in this cause, was made for the fraudulent purposes alleged in the said bill.

Exhibit--By the complainants--a deed of mortgage from E. Betts to complainants, dated the 24th of March 1819, for the lot of ground, to secure the payment of the money in the manner mentioned in the bill of complaint, which mortgage was recorded on the 27th of April 1819. The exhibit by the defendants--a deed from Enoch Betts to Elizabeth Ball, dated the 17th of March 1819, whereby the former "for and in consideration of the sum of four thousand dollars lawful money of the United States, to the said Enoch Betts in hand well and truly paid by the said Elizabeth Ball, at and before the sealing [**9]  and delivery of these presents, the receipt whereof the said Enoch Betts doth hereby acknowledge," &c. the said Betts granted and conveyed to the said E. Ball a lot of ground in the city of Baltimore, No. 111, &c. This deed was recorded on the 9th of August 1819.

A commission issued, and testimony was taken thereunder. That of Beale Spurrier was very similar to that stated in the bill, with other additional evidence of what took place between him and Betts at a subsequent period, on having called on Betts at the instance of Priestly. The testimony of Walter Ball is, that Elizabeth Betts is his sister. That previous to her marriage, he called on Betts to know whether he had conveyed to the deponent's sister a sufficiency of property to make her independent of his children, as he had promised to do. He told the deponent he had got the deed, and gave it to the deponent, and said here is what I have given your sister, and requested the deponent to take it and read it, and said at the same time, he thought it was sufficient to make her comfortable. After deponent had read the deed he replied, he thought it was. The deed was at that time executed and acknowledged by Betts. He informed [**10]  his sister of the contents of the deed before her marriage, which appeared to be satisfactory to her. Betts was an elderly man, with a family of four children. E. Ball was a young woman. It was at the request of E. Ball, the deponent went to examine the deed given to her by Betts. The testimony of William Ball is, that Elizabeth Betts is his daughter; that E. Betts addressed her, and he consented to the marriage, provided Betts would make her independent of Bett's children; and that a few days before the marriage he met Betts, and had a conversation with him, and Betts mentioned to the deponent that he was clear with Mr. Priestly, and that he was then prepared to place the deponent's daughter in the situation which he had promised. Betts had given deponent to understand that he was an independent man, though not a rich one, and that he was in a situation to make the deponent's daughter independent of his children. Sarah Ball deposed, that Elizabeth Betts is her daughter. That Enoch Betts did make the deed to her daughter; that the deed was shown to, and read by, the deponent, it having been executed and acknowledged by Betts; this was previous to the marriage. That at the time of showing [**11]  the deed, Betts observed, that it would be sufficient to keep her daughter from want, to which the deponent replied yes. That it was with the approbation of her daughter that the deed was examined and read by the deponent. The deponent was determined in her mind that Betts should not have her daughter without he gave her a sufficiency to keep her from want in case of his death. When he asked the deponent for her daughter, she observed to him that he was a great deal older than her daughter was; that he might die first, and leave her with a rising generation; and then asked him what was to become of her and her children--to be depending on his children for her support? The deponent intimated to him that he ought to give her something independent of his children. He then replied he would. She then left him, and told her daughter that Mr. Betts intended to make her independent of his children if she was willing to have him. Six or seven days before the marriage, the deponent went and asked him whether he had done that business? He said he had; with that he got the deed and showed it to her, and she read it, and then he said he thought it was sufficient. The deponent replied yes. She went [**12]  home and informed her daughter of it. That the marriage took place on the 25th of March 1819. Other similar testimony was taken and returned under the commission, but which is unnecessary to be stated.

JOHNSON, Chancellor, (July term 1822.) The object of the bill is to vacate a deed, on the ground of fraud, executed by Enoch Betts to Elizabeth Ball, with whom he afterwards intermarried, and to obtain a decree for the sale of the property under a mortgage obtained from Betts to the Union Bank, to secure the payment of a sum of money due from him to the bank, and for which Edward Priestly, the other defendant, was responsible to the bank.

On the 24th of March 1819, the mortgage was executed to secure the payment of the sum of $ 1700. The debt arose on two notes amounting to that sum, which had been discounted at the bank; and three years were to be allowed for the payment of the principal debt, provided Betts regularly renewed the notes during that period, and paid the discounts. The bill, (which was filed on the 25th of September 1820, before the three years had clapsed,) alleges that Betts had not renewed the notes when due. The mortgage was recorded on the 27th of April [**13]  following the date.

The bill states, that a short time previous to the execution of the mortgage, Betts called on a conveyancer, and requested him to draw a deed, (for the same property included in the mortgage,) and leave the name of the grantee, and the consideration, blank. On the 17th of March 1819, he, Betts, waited on the conveyancer, and requested the blank to be filled up with the name of Elizabeth Ball, as the grantee, which was done, and the deed on that day executed.

The same conveyancer was afterwards, at different times, requested by Priestly and Betts to prepare some securities on the property of Betts to secure the debt to the Union Bank; that on discovering that part of the property, designed to be mortgaged, was the same comprehended in the deed to Elizabeth Ball, the conveyancer, (Beale Spurrier,) informed Betts that the first deed, (the execution whereof Spurrier had by Betts been requested to keep secret,) must be cancelled, or he (Spurrier,) must inform those interested with the circumstances. Betts, who then had the deed in his possession, said it should be cancelled, declaring that E. Ball had no knowledge of it; and the deed was left with Spurrier.  [**14]  The mortgages were prepared, and a deed written at the instance of Betts, to convey his equity of redemption in the same property before conveyed to E. Ball, as a substitution for the first deed, observing, he thought it would be in his power to redeem the mortgages. The mortgages and the last deed were then executed. Betts was again informed by Spurrier that the deed of the 17th of March (the first deed to E Ball,) must be destroyed, when Betts replied he wished to keep it, as he expected to pay the debt in the course of six months; that he would request the bank not to have the mortgages recorded until the time for recording had nearly expired; and that he preferred recording the first to the second deed to E. Ball, and pledged his honour to Spurrier not to use the first deed except the mortgage was discharged; on which Spurrier permitted him to take and retain the first deed. Not regarding his promises, but as the bill charges, fraudulently intending to injure and deceive, the first deed was lodged for record immediately before or shortly after Betts married Elizabeth Ball.

The answer of Betts admits the request to have the deed prepared with the blanks, and when drawn, at [**15]  his request, the name of Elizabeth Ball was inserted as the grantee; but he denies all the allegations in respect to keeping the transaction a secret, or that he had thought proper to make a provision for E. Ball, whom he was about to marry, or that any conversation passed between him and Spurrier of the nature that is set forth in the bill. And his wife, by her answer, believes what her husband states is true. Both of them aver that the deed was executed in consequence of an agreement previously entered into between them on the eve of marriage, for a marriage settlement; that the agreement was made in the month of February, or the beginning of March 1819. Enoch Betts denies every thing that is alleged about the promise to cancel; and denies that the deed, with the knowledge of Elizabeth, was left with Spurrier; and avers that the deed of the 17th of March was executed and delivered anterior to the mortgage.

The only consideration of the deed of the 17th of March, is the payment of the sum of $ 4000, the receipt of which is acknowledged. This deed was recorded on the 9th of August following its date.

This cause has been argued partly in writing and in part verbally, and every [**16]  attention has been given to the grounds occupied by each in maintenance of the side each espoused; and all the evidence and circumstances of the case, as well as all the authorities relied on, maturely considered. Several questions arise in the cause.

First. Was the deed to Elizabeth Ball, in point of fact, first duly executed?

Second. If first executed, is it available against the complainants? and as the consideration contained in the deed was not paid, can any other be set up in its support?

Third. Supposing it competent to give, in support of the deed, evidence of a consideration other than the one contained therein, is there evidence of such a consideration for its execution as can prevail against the complainants?

1. On the first question. It will be perceived, on an attentive examination of the bill, and the answer of Enoch Betts, that the allegations, that at the time the mortgage was executed, the first deed was in the possession of Spurrier, is not denied by the answer. The answer denies that he, "Enoch, left the said deed with the said Spurrier with the knowledge or consent of the said Elizabeth." All of which is consistent with the bill; for so far from [**17]  alleging that E. Ball ever consented to the deed being carried to and left with Spurrier, she is declared to be ignorant of its existence. What is contained in the bill on this subject is not denied; but the denial applies to what is not charged, and is therefore foreign from the matter in contest.

The evidence of Spurrier is explicit on this subject. He swears that Betts brought to and left with him, the deed, which after the three other deeds were executed, on the solemn promise of Betts not to use it but on the event of the discharge of the mortgage, he (Spurrier) permitted Betts to retain the possession of the deed. That is, he returned the deed to him, and permitted him to keep it, only to be used on the event taking place that had been mentioned.

If the evidence of Spurrier is true, of which I entertain not the most slight doubt, then in point of fact, the deed of the 17th of March (if it may be denominated a deed) was not delivered to E. Ball, or to any other person for her use, when the mortgage of the 24th of March was executed. The delivery, and not the date, is the essential part. The instrument of writing may be a deed without date, but no deed can exist without [**18]  delivery; until then the act is as incomplete as a paper purporting to be a last will and testament before the death of the maker.

But it has correctly been remarked by the counsel for Mrs. Betts, that no act of her husband can invalidate her deed; that once executed, it is free from his control. This position, true in itself, before it can be brought to bear on the cause, requires that the instrument in question must first be established to be a deed. Surely, if from the time it was executed, to the 24th of March, it had been in the exclusive possession of Betts, and was then delivered up, in order to give effect to other deeds then executed, it never could be brought, by relation to its date, to control and defeat them. Is there any evidence of the delivery either to E. Ball, or to any other person for her?

Her mother, S. Ball, proves that "the deed was shown to and read by her." By whom was it shown? Not by E. Ball, or any person to whom it was delivered, but by Betts himself, then in possession of it, as manifestly appears by the whole of her evidence taken together.

Walter Ball, her brother, proves that previous to the marriage he called on Betts, who said he had [**19]  "got the deed, and gave it to the deponent, and said here is what I have given your sister, and requested deponent to take it and read it, and said at the same time, he thought it was sufficient to make her comfortable. After deponent had read the deed, he replied, he thought it was." The deed, as is evident from the whole of his evidence, was then returned to Betts; for in his answer to the fourth interrogatory on the part of the defendants, he says "he informed his sister, Elizabeth Ball, of the contents of the deed before her marriage." She would not have been informed of the contents of the deed, if her brother then held it; she would either have read it herself, or had it read to her.

These are the only witnesses in the cause on whom any reliance can be placed to establish a delivery of the deed of the 17th of March, to have been made prior to the mortgage. All the witnesses, it is true, in speaking of the instrument of writing of the 17th of March, call it a deed, as is also done in this decree; but if it was not accompanied with all the solemnities necessary to constitute it such, the appellation of deed will not make it one.

It may fairly be inferred, it never was [**20]  the intention of Betts to give it the binding efficacy of a deed, before the solemnization of marriage; for as the consideration was money, and as he denies all that is stated by Spurrier in respect to the marriage, had he parted with the paper, the title to his property, certainly as between him and E. Ball, would have been transferred to her, and would have vested in her, although she afterwards refused to marry him; and whether it ever could have been recovered back is problematical.

To constitute a deed, delivery of some kind must be proved. To a third person for the grantee is sufficient; but the casual placing it in the hands of a third person, with the view to let him read it, and then return it, will no more amount to a delivery, than if the grantor had retained in his own hands the paper, and there permitted it to be read. No case has been produced, nor have I been able to find one, by which, on the evidence as here disclosed, the paper of the 17th of March can be established a deed to overreach the mortgage of the 24th of the same month to the complainants.

The execution of the deed, it has been contended, is not called in question by the bill, and therefore need [**21]  not be proved. The bill, it is true, calls the instrument a deed; but it shows that when the mortgage was executed, it was not in the possession of the grantee, directly or indirectly; and if a delivery is necessary for its validity as a deed, and there was none, its execution cannot correctly be said to be admitted. But if the opinion given on the first question is not tenable, the second arises.

2. Can evidence of a consideration, other than that contained in the deed be received to support it? This entirely depends on law, and might properly be referred to a court of law, but having expressed an opinion on the first point, which, if correct, ends the cause, I shall, without the assistance of a court of law, determine the other point.

It is well established as a general rule, "that parol evidence cannot be admitted to contradict, add to or vary, the terms of a will, deed, or other instrument of writing." For, to use the language of Lord Coke, "it would be inconvenient that matters in writing, made by advice and on consideration, and which finally import the certain truth of the agreement of the parties, should be controlled by an averment of parties to be proved by the [**22]  uncertain testimony of slippery memory; and it would be dangerous to purchasers, and all others, in such cases, if nude averments against matter in writing should be admitted." Countess of Rutland's case, 5 Coke, 26.

But although the rule, as a general one, is not controverted, and its applicability to prevent different uses and trusts from being raised, than are contained in the instrument, or to vary the condition of a bond; yet a difference in respect to the admission of parol evidence is alleged in regard to the consideration of the instrument itself. Parol evidence cannot vary the uses, &c. but parol evidence may be received to establish a deed by the proof of another consideration, consistent with the nature of the consideration contained in the deed or instrument. And, as is argued on behalf of the deed, marriage, as well as money, is in contemplation of law, and in reality a valuable consideration. Therefore, if it appears that the deed was executed in consequence of a previous marriage agreement, it must be supported.

It will be found, on an examination of the authorities, that in some instances you may give evidence of a consideration in addition to that stated [**23]  in the deed, if the additional consideration is of the same nature. But such evidence is not admissible in every instance. Nor has any case presented itself in my researches, which, on this occasion, have not been slight, where a deed has ever been supported by the proof of a consideration consistent with the nature of that in the deed, except where the consideration in the deed, as well as the one proved in addition, was also true.

With what propriety, it may be asked, can it be said, when the deed purports to convey property in consideration of $ 4000 paid, that you can be permitted to prove that a marriage contract, and not the money, was the inducement or consideration for the conveyance, and at the same time contend that such proof is consistent with the deed? They are as variant as north from south. If the $ 4000 had been paid for property worth $ 20,000, the inadequacy of price might of itself induce the belief that the deed was improperly obtained. But to support the deed, the real consideration, as set forth in the deed being true, parol proof of an additional consideration consistent with its nature--such as marriage, might be let in. For as the $ 4000 were in part the [**24]  real consideration, the superadding another consistent consideration, the books say, is no variance. But it is believed no book has gone so far as to establish a deed by another consideration alone, than the one expressed in the deed. "Where a deed is impeached for fraud, the party charged will not be allowed to prove any other consideration in support of the instrument." 1 Phillip's Evid. 426. Clarkson vs. Hanway, 2 P. Wms. 203. But "the party which complains of the fraud may prove any consideration, however contrary to the averment of the deed, to show the fraudulent nature of the transaction." For there is no danger, say the books, that the introduction of such proof would introduce uncertainty or fraud, "but, that fraud would be assisted by its exclusion, the whole object of the evidence being to expose and defeat a secret fraud." 1 Phill. Evid. 424 to 428, and the cases there referred to. 1 Fonbl. 202.

As, in this case, there is not the least foundation to suppose the $ 4000, the alleged consideration of the deed, ever were paid, the evidence going to establish another consideration is clearly inadmissible.

The decision of the court of appeals in Jones vs.  [**25]  Slubey, 5 Harr. & Johns. 372, bears strongly on this cause.

3. If the evidence of the consideration set up in support of the deed was admissible, could such a consideration support the deed?

Enoch Betts, being largely indebted, wishes to marry. He is an old man, with a number of children; forms an attachment for a young lady, who it would seem would not marry him without obtaining something to make her independent of his children. This he promises to do; and this appears to me to be the substance of what is now termed a marriage contract. Now let us suppose this promise was made, which I do not question was the case, and she had been informed by Betts he had secured to her what would make her independent of his children, and relying on this information she married him, and then discovered no such establishment had been made, could a bill be supported in chancery? Where is that certainty which all contracts demand? What, it might be asked, was he to convey? What and how much would make her so independent? If a bill could not be supported, supposing no paper to have been signed, how could a claim be maintained on such a promise, supposing the paper to have been signed, so as [**26]  to obtain it from him as a completion of these engagements? It seems to me a dangerous principle to permit a man, involved in debt, by making a promise to settle his property on the woman he intended to marry, to do so, to the ruin of his creditors. On these subjects I express no opinion, except I do not think the public good would be promoted by the encouragement of marriages on such conditions.

That the complainants may obtain the relief they appear justly entitled to--Decreed, that unless the defendants shall, on or before, &c. pay, or cause to be paid, to the complainants, the sum of $ 700, with legal interest on the same from the 25th of April 1819, and the further sum of $ 1000, with interest as aforesaid, from the 28th of April 1819, until paid, together with the costs of this suit, the property in the deed of mortgage filed in this cause be sold, or such part as will be sufficient to discharge the said sums. And in order to make the said sale, on failure to pay--Decreed, that R. J. be and he is hereby appointed trustee, &c. From this decree Betts and Wife appealed to this court.  

DISPOSITION:
DECREE AFFIRMED.  

HEADNOTES:

Marriage cannot be given in evidence as the consideration of a deed of bargain and sale expressed to be made for a money consideration only.

The greatest extent to which the authorities have gone, has been to allow an additional consideration to be proved, which is not repugnant to the one mentioned in the deed: but where a deed is impeached for fraud, the party to whom the fraud is imputed, will not be permitted to prove any other consideration in support of the instrument.

Ante-nuptial settlements, made in consideration of marriage, are good, even though the party be then indebted.

As a general principle of the law, delivery is essential to the legal existence and validity of a deed; but our legislative enactment declares a deed, recorded within the time prescribed by law, to be efficient and operative from the time of its date.  

COUNSEL:
J. Glenn, for the Appellants, contended,

1. Under the circumstances [**27]  of this case the appellees had no right to come into a court of equity to ask relief.

2. The deed to the appellant, Elizabeth, was duly executed for a valuable consideration previous to the deed to the appellees.

3. Parol evidence is admissible to support the deed.

The appellants have the superior legal title, and the superior equity. The act of 1766, ch. 14, s. 5, fixes the time when the deed enured to the benefit of Mrs. Betts. It took effect from its date, and gave the legal title to her before the mortgage to the appellees. The deed was delivered before the mortgage; and it was made in consideration of marriage. Any act amounting to a delivery is sufficient to constitute a delivery of a deed. The consideration was marriage, and that is a valuable consideration. 2 Blk. Com. 297. Sugd. 465, and the cases there cited. Verplank vs. Sterry, 12 Johns. Rep. 546. A subsequent marriage validates a voluntary deed as against creditors. There was a good delivery of the deed. Shelton's case, Cro. Eliz. 7. 13 Vin. Ab. (K.) 23, pl. 12. Souverbye vs. Arden, 1 Johns. Ch. Rep. 255. 2 Rolle's Ab. 24, 1. 28, 45. 4 Com. Dig. tit. Fait, (A. 3,) 158. There must be fraud to defeat the prior [**28]  deed. Evans vs. Bicknell, 6 Ves. 189, 191. Berry vs. Mutual Insurance Company, 2 Johns. Ch. Rep. 609. The consideration was $ 4000, as expressed in the deed, and it is in proof that the consideration was marriage, and not a money consideration. Where there is a valuable consideration expressed, another valuable consideration may be averred where there has been no fraud. Villers vs. Beamont, 2 Dyer, 146. Mildmaye's case, 1 Coke, 176. Lord Cromwel's case, 2 Coke, 76. Vernon's case, 4 Coke, 3. Peacock vs. Monk, 1 Ves. 128. The King vs. Inhabitants of Scammonden, 3 T. R. 474. The King vs. Inhabitants of Laindon, 8 T. R. 379. Sugd. 87. Fancis's Max. No. 2. 1 Fonbl. 138. The appellees had notice of the deed, and they must take subject to that deed. The conveyancer was the agent of the appellees. Le Neve vs. Le Neve, 3 Atk. 646. If there is a defect in the deed to Mrs. Betts, equity will make it good. 1 Madd. 41.

R. Johnson, for the Appellees. 1. There was no notice to the agent. The conveyancer was as much the agent of Mrs. Betts as of the appellees. He knew that Betts was indebted to the appellees. If Mrs. Betts, through the agent, knew that fact, was the deed to her an effectual conveyance [**29]  under such circumstances? It would have been a fraud on her in taking the deed. Was there a delivery of the deed? It is the delivery that makes it the deed of the party. 2 Blk. Com. 307. A deed takes effect from its delivery. When was this deed delivered? There is no pretence that it was delivered to Mrs. Betts, or that she ever saw it. It was to be the deed of Betts when the marriage took effect. The deed was not left as in Shelton's case, Cro. Eliz. 7, but Betts put the deed in his pocket, and took it away with him after he had executed it. There is no evidence to show that there was any delivery. The grantor took the deed to the clerk's office to be recorded, and it was then, and not before, legally delivered. The act of 1766, ch. 14, s. 5, in speaking of the date of the deed, means from the time of the delivery. The day of the date is the day of the delivery, Jackson vs. Bard, 4 Johns. Rep. 230.

2. Can parol evidence be received to prove a different consideration than that stated in the deed? The chancellor in his decree has correctly laid down the rule. The consideration of marriage, is not of the same nature as that in the deed. If the parol evidence is to admit that the [**30]  consideration was marriage, and not money, it would be to change the consideration wholly from that stated in the deed. 2 Blk. Com. 338. What the deed is, and what it will be if the evidence is admitted--Where it is a money consideration, then it is a bargain and sale--If marriage, then the nature of the deed will be changed into a covenant to stand seized to uses. Can such a doctrine as this be admitted? A deed of bargain and sale has certain requisites peculiar to itself, which the evidence would have the effect to change and wholly defeat. Independent of the Statute of Frauds, the evidence could not be admissible. The cases cited by the appellants' counsel, are where there is a pecuniary consideration, and other pecuniary consideration is proved; but none of them go to say you can change the consideration, and substitute another in its place, although they both be valuable considerations. 1 Phill. Evid. 426, (483.) Betts executed the deed with a fraudulent design, and the consideration stated in the deed was not paid. If the evidence is admitted, then the fraud will be consummated. Clarkson vs. Hanway, 2 P. Wms. 203. Watt vs. Grove, 2 Sch. & Lef. 501. Jones vs. Slubey, 5 Harr. &  [**31]  Johns. 372. 2 Com. Dig. tit. Bargain & Sale, (B 10,) 64.

Taney, in reply. The deed, under which the appellants claim, purports, on the face of it, to be made for a money consideration only. It appears by the answer and evidence, that no money was in fact paid, and that the deed was in truth made in consideration of marriage only, and that the marriage took effect. If the deed was made without consideration, or was merely voluntary, it is fraudulent and void against the appellees, who were creditors at the time. The consideration mentioned in the deed is admitted not to have been paid. It is, therefore, fraudulent and void, unless some other valuable consideration can be proved. And the question is, can the appellants be permitted to prove the consideration of marriage, upon which, in truth, the deed was made? If by the rules of equity they are permitted to offer such evidence, then the deed is not fraudulent, but is a good deed for a valuable consideration--that is, in consideration of marriage. It is insisted that the evidence is admissible.

1. The general rule is, "that although a particular consideration is mentioned in the deed, yet an averment may be made of another [**32]  consideration which stands with the consideration expressed, and is not repugnant to it." The rule is stated in the words of Ld. Coke, as repeatedly recognized in his reports. Mildmaye's case, 1 Coke, 176. Lord Cromwell's case, 2 Coke, 76. Vernon's case, 4 Coke, 3. Bedel's case, 7 Coke, 40. In all of these cases, Villars vs. Beamont, 2 Dyer, 146, is relied on as the leading case, and is recognized as authority. The same rule is recognized in Sug. Vend. 97, 98, (ed. 1820,) and in Phil. Evid. 425, &c. The rule in Sugden is, "that parol evidence may be given of collateral and independent facts, which tend to support the deed," provided it is not offered to vary the agreement, and is consistent with the deed.

2. The case at bar is in all respects within the words and spirit of the rule, as above established. The evidence offered is to prove "a collateral and independent fact, tending to support the deed, and consistent with the deed, and does not vary or control it." It is another consideration consistent with the one expressed in the deed, which, in the language in Vernon's case, 4 Coke, "stands with the consideration expressed."

3. As the general rule embraces the case, it [**33]  is incumbent on the appellees, who object to the evidence, to show the principle which excepts it out of the general rule. He who alleges an exception, must prove the exception. It is said, that there is no case in which the additional consideration has been proved, but where the consideration expressed was proved also; and hence it is inferred, that the consideration expressed in the deed must be first proved, in order to let in the proof of the additional consideration. It is perhaps a sufficient answer to this argument to say, that there is no case in which the additional proof was rejected, because the consideration expressed was not proved. The want of a case, therefore, on the subject, cannot be supposed to establish a principle. The argument above stated on the part of the appellees, would prove that the testimony ought to be admitted, quite as well as it proves that it ought to be rejected. The argument of the appellees is briefly this--"There is no case in which the additional consideration was admitted where the consideration expressed was not proved; therefore, the additional consideration cannot be admitted where the consideration expressed is not proved." Now, try the [**34]  argument on the other side. There is no case in which the additional consideration was rejected, where the consideration expressed was not proved; therefore, the additional consideration cannot be rejected where the consideration expressed is not proved. But in truth, the argument on both sides is illogical and unsound. The mere want of a case proves no principle. If the want of a case cannot establish a principle, neither can it narrow or limit a known and admitted principle. And if these positions be right, it follows that the appellees have failed to show that the case at bar is an exception of the general rule. If they fail to show the exception, the case being within the general rule, the evidence is admissible.

4. It is objected, that when it is proved that the consideration expressed was not paid, that then the deed is fraudulent, according to the proof it becomes void and inoperative, and the party claiming under it will not be permitted to re-establish it by showing another consideration. The answer to this is already given. It is an attempt by the appellees to except this case out of the general rule; to narrow the general rule by incorporating with it the principle [**35]  above stated. We show the general rule as settled and continually recognized; and we show the authorities on which it rests. If the rule is to be narrowed, or the case at bar to be excepted out of it, the appellees' counsel must show the exception. He must produce the authority which establishes the new principle he seeks to engraft on the rule. He has failed to do so. He cannot, therefore, entitle himself to the exception or limitation for which he contends. Again: The argument on which the appellees' counsel rests the above position, is not sound--it proves too much. The principle, on which the above position rests, is this: that where a party impeaching a deed, shows by proof de hors the deed, that it is fraudulent, and therefore void, the party claiming under the deed thus nullified, shall not be permitted to offer evidence de hors the deed, to re-establish and give life to the deed. If this position were true, then the following case would be within it. Property worth $ 20,000 is conveyed, and the consideration expressed is $ 5. A creditor of the grantor seeks to vacate the deed. He proves that he was a creditor at the time to the amount of $ 10,000; that the property conveyed [**36]  was worth $ 20,000. Upon this proof alone it is clear that the deed is fraudulent. It is nullified by evidence de hors the deed. May not the party claiming under the deed prove that he actually paid $ 20,000? All of the cases admit he may do so; yet this is evidence de hors the deed, and is offered to reestablish and give life to it; or to speak more correctly, it is offered to show that the deed was always good, was never null and void. It may be said in the case supposed, the consideration expressed in the deed was actually paid--in the case at bar it was not. This is a difference in fact, it is true; but a difference in fact is not necessarily a difference in principle. The principle upon which the deed is made void in both cases is, that the deed is a fraud on the creditor. It matters not by what peculiar chain of facts it is shown to be a fraud upon the creditor. It is the fraud, however, proved, that makes it void; and if it is not fraudulent, whatever may be the facts, it is good, if in other respects regularly executed. Neither does the admissibility of the evidence depend on the payment or nonpayment of the consideration expressed. If the evidence is repugnant to the deed,  [**37]  it is not admitted. If it is not repugnant it is admitted. Whether it is repugnant or not, must depend on the words contained in the deed itself, or the writing itself, and not on matter de hors the deed; not on matter appearing by parol out of the deed. Its repugnancy, therefore, does not depend on the question, whether the consideration expressed was or was not paid, but on the question whether the parol evidence is consistent with the writing? In the case at bar the testimony is surely quite as consistent with the deed, as in the case above supposed, and if admissible in the one case is equally admissible in the other. Indeed, the only and true question is, how far parol evidence is admissible where there is an instrument of writing? It is discussed and decided on this principle in the case of Villers vs. Beamont, 2 Dyer, 146, and in the cases in Coke's Reports already cited; and it is classed under this head in Sugden and Phillips in the passages already referred to. It must, therefore, depend not on the payment of the consideration expressed, but on the words of the deed, that is, on what consideration is expressed in the deed; and so indeed it is decided in so many words in Lord [**38]  Cromwel's case, 2 Coke, 76. "The consideration must stand with the consideration expressed," that is, the consideration named in the deed; and no question is made about whether it has been paid or not. And in Mildmaye's case, 1 Coke, 176, it is decided, that the consideration of marriage is consistent with a money consideration; and the other cases cited affirm the same doctrine.

5. This argument is upon the admission that there is no case decided where the consideration expressed was not paid. If we are right in the principles before urged, the absence of such a case furnishes no argument against us. But the appellees' counsel, in assuming that fact, is not strictly correct. In Reade vs. Livingston, 3 Johns. Ch. Rep. 481, the consideration expressed in the deed was money only; and the consideration set up was marriage, it being admitted that no money was paid. It is true, that the point now under consideration does not appear to have been raised in the argument, nor was it directly decided by this court, yet the case necessarily presented the very point now under discussion; and as that case was fully argued, and is most ably decided by Chancellor Kent, upon great consideration,  [**39]  it cannot be supposed that the eminent counsel, and distinguished chancellor, would entirely overlook a point which met them at the very threshold of the discussion, and which, if the evidence be not admissible, decided the case at once, and relieved it from the many interesting and difficult questions which appear to have been so elaborately considered, and so well decided by the chancellor. The whole argument of Chancellor Kent proceeds on the assumption that the evidence is admissible. It may be inferred from this that it was considered a settled point, and no doubts entertained about it at the bar, or by the court. If this inference be just, it sanctions, in all respects, the admissibility of the evidence as contended for by the appellants. It is indeed hardly possible to believe, that the point was overlooked or forgotten; for the very same principle was discussed and decided upon by Chancellor Kent, in Hildreth vs. Sands, 2 Johns. Ch. Rep. 35, only about two years before the case of Reade vs. Livingston. The chancellor's decision is not on the precise point or the precise facts now under discussion, but it involved the same general principle. It was decided according to all the [**40]  authorities, and supports the principle as contended for on the part of the appellants. This case brings us to the only exception to the general rule; which exception is recognized in the case of Hildreth vs. Sands.

6. It may be admitted, that where a deed purports to be for a valuable consideration, it cannot be set up as a gift or voluntary conveyance. This is the doctrine laid down by Ld. Hardwicke in Bridgman vs. Green, 2 Ves. 627, 628. But even there it is subject to certain limitations, and is not to be taken as universally true between all parties who may seek to invalidate it. In Clarkson vs. Hanway. 2 P. Wms. 203, the principle last stated is decided; and this, which is the oldest case upon the subject, may be considered as furnishing the principle by which the case of Bridgman vs. Green, and the subsequent cases, have been governed. In the case of Clarkson vs. Hanway, the deed not only purported to be for a valuable consideration, but was insisted on as such in the answer. In Hildreth vs. Sands, the deed purported on the face of it to be for a valuable consideration, and was also insisted on as such in the answer; and the chancellor's opinion confirms the principle as [**41]  above stated, with this additional limitation, that it must be "brought forward," that is, insisted on in the answer as founded on a valuable consideration. The case of Watt vs. Grove, 2 Sch. & Lef. 492, 501, will be found not to impair the principles we have stated. The result of all of these cases, (and they are believed to be the only ones that bear immediately on this part of the case,) is to make the exception even still more limited in its operation than is admitted at the head of this division of the subject. The true extent, as proved by the authorities cited, appears to be this--Where the grantor was a weak man, liable to be imposed upon, or from his relative situation was liable to the influence of, or to be imposed upon by, the grantee, in such cases, if the deed appears on the face of it to have been for a full and fair valuable consideration, then the grantee shall not be permitted to set it up as a gift. The cases of Clarkson vs. Hanway, Bridgman vs. Green, and Watt vs. Grove, were all cases of this description, and decided upon principles that are not applicable to any other class of cases. The case of Hildreth vs. Sands, is indeed a case of a different description,  [**42]  and the deed is impeached by a condition, not on the ground of imposition on the grantor, but as a fraud by the grantor upon the creditor. In that case, however, the defendant had put his defence in his answer, "upon the fact of a fair purchase for an adequate price," and it is upon that ground that the chancellor rules the evidence to be inadmissible. This case, therefore, does not enlarge the exception beyond what is warranted by the English authorities. It is very clear that a defendant cannot be permitted to put his defence on one ground in his answer, and another in his evidence. If this view of the subject be right, the exception would not apply to cases, where the deed, on the face of it, was for a consideration merely nominal, and obviously intended merely to give the deed a legal operation; nor to cases where a creditor claimed to vacate the deed as a fraud upon him, unless the defendant in his answer alleged the consideration in the deed to be the true consideration. But if these views are mistaken ones, yet it seems perfectly clear, that none of the cases, nor even the arguments of the court in pronouncing the judgment, when the whole argument is taken together, carry the [**43]  exception beyond the limits admitted at the head of this division of the subject. If the cases have carried the exception no further, there is no principle settled in them which requires it to be carried further. For if the danger of perjury is the objection to the testimony, there is precisely the same danger where an inadequate price is mentioned in the deed, and parol evidence admitted to prove that a larger sum was paid; yet it is agreed on all hands that this may be done. And if inconsistency with the words of the deed be the objection, the proof of the consideration of marriage is no more inconsistent with the deed, than the proof of an additional money consideration, where a smaller money consideration is the only one expressed. And when the case of Watt vs. Grove, is carefully examined, it will be found, that not only an additional payment of money may be proved by parol, but the payment of money upon a contract different from that recited in the deed, and distinct from that on which the deed purports to have been made. It results, therefore, 1st. That by the general rule the evidence of the consideration of marriage is admissible in the case at bar. 2d. That the exception [**44]  to the rule, does not embrace it.

The cases of Watt vs. Grove, and Peacock vs. Monk, remain to be examined, and will be found not to impeach the principle insisted on by us. In Watt vs. Grove, the consideration expressed in the deed was money--the additional consideration was also money. The remarks of Lord Redesdale must, therefore, be considered as applicable to that class of cases. He speaks of the danger of parol evidence, but does he say the evidence offered was inadmissible? On the contrary, in speaking of the additional consideration alleged, he says, "it should be proved by the most decisive testimony." And he decides against the deed, not because the evidence was inadmissible, but because the testimony was not sufficient to prove the fact. Another important part of this case ought not to be overlooked. The chancellor decides that a contract recited in the deed is falsely stated as the original contract, and that, too, by the grantee, whose interest was to be advanced by the misstatement, and who had himself prepared the instrument. The additional evidence was offered to show, not the truth of the recital, but to show another and a different contract, by which the original [**45]  one had been afterwards changed to the one recited; yet this evidence he held to be admissible.

If the evidence here stated was admissible, in what respect can the case at bar be supposed to differ in principle? Here the consideration, mentioned in the deed, was not paid, and another valuable consideration is offered to support the deed. The deed was not prepared by Mrs. Betts or her agents, and she is not, therefore, responsible for a false recital of the contract. In Peacock vs. Monk, 1 Ves. 128, the parol evidence was admitted; but there was no consideration expressed in the deed, and the chancellor says, arguendo, that where a particular consideration is expressed, it is a negative of any other, unless it is added "for other considerations." It is not often that the opinions of Lord Hardwicke can be questioned, and perhaps in this case his words may not be accurately reported. For his dictum here is contrary to the judgment of the court in the case of Villers vs. Beamont. And the authority of the case of Villers vs. Beamont, is sanctioned by the cases in Coke's Reports, where it is always referred to as settling the law on this point. Phillip's Evid. 426, (note.) Indeed, the [**46]  principle established by the case of Villers vs. Beamont has never been shaken by any subsequent judgment, and is not questioned by the chancellor in the case now at bar.

In addition to the cases already cited, the following are also referred to in maintenance of the same principles. The King vs. Inhabitants of Scammonden, 3 T. R. 474. The King vs. Inhabitants of Laindon, 8 T. R. 379. Eppes vs. Randolph, 2 Call's Rep. 125. Duval vs. Bibb, 4 Hen. & Munf. 113. In Eppes vs. Randolph, the consideration expressed in the deed to David M. Randolph; was natural love and affection, and for his advancement in life. If there was no other consideration, the deed was voluntary and fraudulent against the creditor. The evidence offered was, that it was in consideration of marriage; and the evidence was held to be admissible. And the case of Duval vs. Bibb, refers to and recognizes the decision in Eppes vs. Randolph. The authorities before cited and remarked upon, are believed to be the only cases bearing upon the principles now in discussion. The decisions are all consistent with each other. It is insisted that they establish the principles we contend for, and show the evidence of the consideration [**47]  of marriage to be admissible.

If the deed to Mrs. Betts be a fraud upon the bank, the deed to the bank, was equally a fraud upon her. The bank and Mrs. Betts, were both innocent purchasers for a fair and valuable consideration. If a nominal and inadequate or false money consideration on had been stated in the deed to the bank, it is clear that they might have shown the true consideration in money. It would be a severe rule of equity, if Mrs. Betts who is equally innocent--equally a purchaser--should yet be precluded from the like privilege, when it involves on his part no more danger of perjury, and is no more inconsistent with the deed, than it would have been in the case before supposed, on the part of the bank. The authorities do not lead to such a conclusion, nor do they support such a rule, and it is hoped that it will not now be established in this court.

The act of 1766, ch. 14, s. 5, by a true construction, means the date of the deed as therein expressed. This is evident from other parts of that act. 2 Com. Dig. 64. The act then fixes the date of the deed, and as the prior title was in Mrs. Betts, it is of no consequence when the deed was delivered. The question is,  [**48]  whether the appellees have a superior equitable title, Mrs. Betts having the prior legal title? The deed to her must be taken to be a true deed.

Curia adv. vult.  

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

OPINIONBY:
STEPHEN 

OPINION:

 [*199]  STEPHEN, J. at the present term, delivered the opinion of the Court. In deciding the question which arises in this case, 

 [*200]  no little difficulty has been felt, from the contrariety of opinions which have been expressed by judges of the greatest eminence and distinction, in cases very analogous, if not exactly similar to the present; and the importance of the principle now to be established as a rule of evidence, merits the most full and deliberate consideration. The question then presented to this court for their adjudication, is simply this. Can marriage be given in evidence as the consideration of a deed of bargain and sale, which is expressed to be made for a money consideration only? The facts of the case are as follows: Enoch Betts being considerably indebted to the Union Bank of Maryland, and being about to be married to Elizabeth Ball, on the 17th of [**49]  March 1819, executed a deed, by which he conveyed to her, and her heirs, a lot or parcel of ground in the city of Baltimore, for the consideration mentioned in said deed, of $ 4000. On the twenty-fourth day of the same month, and the same year, for the purpose of securing the payment of $ 1700 to the Union Bank of Maryland, he executed to the said bank a deed of the same lot or parcel of ground, in trust, to sell the same for the payment of said debt, upon the terms and conditions therein specified. On the 25th of September 1820. The President and Directors of the Union Bank of Maryland filed their bill in the court of chancery, for the purpose of vacating and annulling the above mentioned deed to Elizabeth Ball, upon the ground that they had no knowledge of its existence, at the time the aforesaid deed was made to them. It is admitted that the consideration of $ 4000, specified in said deed, never was paid; but it is contended that the deed of conveyance may be supported, by proving that the consideration in truth was marriage, and that such proof is legally admissible. It is not deemed necessary to enter into a more full detail of the facts and circumstances belonging [**50]  to this case; because if the proof that marriage was the real consideration, is excluded by the rules of evidence upon the subject, the chancellor's decree, ordering a sale of the property for the benefit of the bank, under the deed of the 24th of March 1819, and annulling that of the 17th of March of the same year, to Elizabeth Ball, now Elizabeth Betts, ought to be affirmed. As has already been remarked, the authorities upon this part of the law of evidence 

 [*201]  are contrariant, and cannot be reconciled. There is, however, one great and leading principle in the law of evidence relative to this subject, in the affirmance of which they all concur. It is this, that no evidence is admissible which contradicts the deed. In Maigley vs. Haver, 7 Johns. 341, where it was attempted to prove by parol evidence an additional consideration to the one expressed in the deed, the court say, "it is a settled rule, that where the consideration is expressly stated in a deed, and it is not said also, and for other considerations, you cannot enter into proof of any other, for that would be contrary to the deed. This was so decided by this court in Schermerhorn vs. Vanderdeyden, 1 Johns. 139, [**51]  and again in Howes vs. Barker, 3 Johns. 506. The same rule prevails in equity, according to the cases of Clarkson vs. Hanway, 2 P. Wms. 203, and of Peacock vs. Monk, 1 Ves. 127; and the remedy for the party, if the deed be contrary to the truth of the case, is by seeking relief in equity against the deed, on the ground of fraud or mistake, as was intimated in the case of Howes vs. Barker, and as was adopted in the case of Filmer vs. Gott, 7 Bro. Parl. Cas. 70." In the case of Peacock vs. Monk, 1 Ves. 128, a bill was filed, claiming the benefit of a trust under a deed, and the point was, whether the plaintiff could prove a valuable consideration, as no consideration was expressed in the deed. Lord Hardwicke held, that the proof ought to be read. "It differed, he said, from the common case, upon which the objection is founded, for to be sure, where any consideration is mentioned, as of love and affection only, if it is not said also, for other considerations, you cannot enter into proof of any other; the reason is because it would be contrary to the deed, for when the deed says it is in consideration [**52]  of such a particular thing, that imports the whole consideration, and is negative to any other. But this is a middle case, there being no consideration at all in the deed." Thus it appears that the supreme court of New York have adopted the principle established by Lord Hardwicke, and excluded the proof of any other consideration, where one is expressed in the deed, and it is not said for other considerations, on the ground that the admission of such proof would be contrary to the deed. This doctrine is certainly not reconcileable to the decision made 

 [*202]  in Villers and Beamont, 2 Dyer 146. In that case the consideration in a deed of bargain and sale of lands was stated to be a sum of money, but it was averred, and found by the jury, that the indenture was made "as well in consideration of marriage, (to make it a jointure and bar dower,) as of the said sum of money;" and it was adjudged, that although there was a particular consideration mentioned in the deed, yet an averment might be made of another consideration, which stood with the indenture, and which was not contrary to it. Which decision has since been sanctioned by Lord Coke. Thus it appears [**53]  that both these conflicting decisions concur in the principle, as indisputable law, that no averment of any consideration out of the deed can be made when it would tend to contradict the deed. 1 Phillip's Evidence, 425, 426.
It is not intended by this adjudication to recognize and adopt the rule of evidence as laid down by either of those high authorities, but simply to decide the question involved in this case upon the peculiar facts and circumstances which belong to it. It is admitted that the consideration mentioned in the deed now before the court, was merely nominal, and never was in fact paid. Can the party then, claiming under it, be permitted to prove that the consideration expressed in the deed was not the true consideration, but that the consideration was marriage? Upon a careful examination of the authorities relative to this subject, it appears that the greatest extent to which they have gone, has been to allow an additional consideration to be proved, which is not repugnant to the one mentioned in the deed. But where a deed is impeached for fraud, the party to whom the fraud is imputed will not be permitted to prove any other consideration in support of the instrument.  [**54]  1 Phillip's Evid. 426. The case of Clarkson vs. Hanway, 2 P. Wms. 203, is to the same effect. In that case the Master of the Rolls says, "judging upon the face of a deed is judging upon evidence which cannot err; whereas the testimony of witnesses may be false." It is the consideration expressed in the deed impeached as fraudulent, which excludes the proof of any other consideration in support of it, and not the circumstance that the party charged with the fraud has relied upon such consideration in his answer, although such reliance might render the proof 

 [*203]  still more objectionable, because he had thereby put his defence upon the same ground. But in this case the proof that marriage was the real consideration, and not money, as mentioned in the deed, was inadmissible, as being contradictory to the language of the instrument, and not an averment of another consideration, not inconsistent with, but additional to the one expressed. In 1 Phill. Evid. 426, it is said, that the rule which the authorities appear to have established is, "that although a consideration is expressed, some other additional consideration may be shown not inconsistent with [**55]  the former." The consideration then, which was offered to be proved in this case, (though a valuable one,) not being in addition to the one expressed, but as a substitute for it, was repugnant to the averment of the deed, and upon the admitted principle, was inadmissible as being contrary to it.
To give the rule a greater latitude would, it is conceived, be repugnant to the general principles and policy of the law in relation to titles to real property, the evidences and muniments of which are required to be in writing, and enrolled for public inspection and information in cases of contracts made relative thereto.
The objection, that the deed to Mrs. Betts only took effect from the time of its delivery, cannot be sustained. As a general principle of the law, there is no doubt that delivery is essential to the legal existence and validity of a deed; but our legislative enactment puts that part of the controversy at rest, by declaring the deed to be efficient and operative from the time of its date.
It has been doubted whether the deed could be supported, even if proof that marriage was the consideration could be received. That ante-nuptial settlements, made in consideration of [**56]  marriage, are good even though the party be then indebted--See Reade vs. Livingston, 3 Johns. Ch. 494, and the cases there cited; but as the evidence, that marriage and not money, was the true consideration of the deed in this case, is not admissible, it follows that the decree of the chancellor must be affirmed.
MARTIN, J. dissented.
DECREE AFFIRMED.  

14 of 23 DOCUMENTS 

SAUERWEIN vs. BRUNNER.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

1 H. & G. 477; 1827 Md. LEXIS 32 

June, 1827, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court. Assumpsit by the holder, (now appellant,) against the maker, (the appellee,) of a promissory note, payable to George J. Brown, and by him endorsed to Martin Eichelberger, who endorsed it to the plaintiff. The case is fully stated by the judge who delivered the opinion of this court.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

A promissory note for $ 1,745, payable 90 days after date, made by B at the request of E, and for his accommodation, and by E taken to G, who endorsed it with E, and then delivered by G to M, who negotiated it with H for the sum of $ 1,648 08, which was paid to E, is void for usury.

Where a note commences in usury; or in other words, where a note is tainted with usury at its birth, when it first becomes legally efficient and operative so as to give to the holder a right of action upon it, no subsequent holder, for a valuable consideration without notice of such usury, can maintain a suit upon it--such note being declared by statute null and void.

A note endorsed for the accommodation of the maker, and passed by him as a security for a usurious loan, is a usurious contract in its inception; as the lender is in fact to be considered the first holder of the note.

The terms to negotiate a note, import the passing it for money; and to pass a note for money, means to transfer such note to another proprietor.  

COUNSEL:
Mayer, and Cruse, for the Appellant, contended, 1. That the time at which the instrument, on which this action is founded, became a complete and perfect note, was a question of fact for the jury, and not a question of law, and, therefore, that the court below erred in giving the directions prayed to the jury.

2. That if it be a question of law, yet, on the first delivery of the said note by its maker to Martin Eichelberger, the person for whose accommodation it was drawn, it became a complete and valid note.

3. That as no usurious consideration passed between any of the said parties at the time of said delivery, no subsequent usurious loan made on said note could vitiate it, and that it was therefore valid in the hands of a subsequent bona fide holder for a full and valuable consideration.

They cited Parr vs Eliason, 1 East, 92.  [**2]  Dagnall vs Wigley, 11 East, 42. Daniel vs. Cartony, 1 Esp. Rep. 274. Foltz vs Mey, 1 Bay's Rep. 486. Barclay, qui tam vs Walmsley, 4 East, 55. Bowyer vs Bampton, 2 Stra. 1155. Lowe vs Waller, 2 Doug. 735. Young vs Wright, 1 Campb. 139, 141. Ackland vs Pearce, 2 Campb. 599. Lowes vs Mazzaredo, 1 Stark. Rep. 385, (2 Serg. & Low. 438.) Wilkie vs Roosevelt, 3 Johns. Cas. 66. Jones vs Hake, 2 Johns. Cas. 60. Bennett vs Smith, 15 Johns. Rep. 355. Churchell vs Suter, 4 Mass. Rep. 156. Powell vs Waters, 17 Johns. Rep. 181. Marvin vs M'Cullum, 20 Johns. Rep. 288. Durham vs Dey, 13 Johns. Rep. 40. Munn vs The Commission Company, 15 Johns. Rep. 44. Smith vs Beach, 3 Day's Rep. 268. Ellis vs. Warn, Cro. Jac. 33. Burt vs Gwinn, 4 Harr. & Johns. 507. Johns vs Davison, 1 Holt's Rep. 256, (3 Serg. & Low. 92.) Lucas vs Latour, 6 Harr. & Johns. 100.

Mitchell, R. B. Magruder, and Kennedy, for the Appellee, cited Lowe vs Waller, 2 Doug. 736. Nevison vs Whitley, Cro. Car. 501. Booth vs Cooke, 1 Freem. 264. Parr vs Eliason, 1 East, 92. Heylyn vs Adamson, 2 Burr. 676. Ackland vs Pearce, 2 Campb. 599. Munn vs The Commission Company, 15 Johns. Rep. 44. Powell vs Waters, 17 Johns Rep. 176. Marvin vs M'Cullum,  [**3]  20 Johns. Rep. 288. 2 Stark. Evid. 250. Chitty on Bills, 78, (and notes.) Lansing vs Gaine, 2 Johns. Rep. 303, 304. Lowes vs Mazzaredo, 2 Serg. & Low. 438., Jones vs Davison, 3 Serg. & Low. 99, (note.) Webber vs Maddocks, 3 Campb. 1. cited in Chitty on Bills, 132, b. 1 Stark. Evid. 414. Bank of Ulica vs Wager, 2 Cowen's Rep. 763. New-York Fire Insurance Company vs Ely, Ib. 705, 706, 707. Chitty on Bills, 105, (note.) 100, (note 5.) Tyson vs Richard, 3 Harr. & Johns. 111.

Curia adv. vult.  

JUDGES:
The cause was argued at the last June term, before BUCHANAN, Ch. J. and MARTIN, STEPHEN, and DORSEY, J. DORSEY, J. dissented in part.  

OPINIONBY:
STEPHEN 

OPINION:

 [*479]  STEPHEN, J. at this term, delivered the opinion of the court. On the trial of this case in the court below, the plaintiff, (now appellant,) gave in evidence the following promissory note: "Baltimore, Feb'y. 26th, 1819. Ninety days after date I promise to pay George J. Brown, or order, seventeen hundred and forty-five dollars, and twenty cents, for value received;" which note was signed by the defendant, (the appellee,) and was endorsed by George J. Brown, Martin Eichelberger, and the plaintiff, and proved the handwriting [**4]  of the maker and endorsers respectively; and further proved, that the said promissory note was passed bona fide, and in the due course of trade, and for a valuable consideration, into the hands of the plaintiff; and here the plaintiff rested his case. Whereupon the defendant called Martin Eichelberger, whose name is on the note, who being released, was admitted to be a competent witness, who testified, that having been pressed for money, at the time this note was made, he applied to the defendant to lend him, for his sole accommodation, the defendant's note, to be negotiated in order to raise money for his use. He further proved by said witness, that the defendant complied with his request, and that he the witness applied, with the note, to George J. Brown, for a loan of money, which Brown agreed to make him upon the said note, and did accordingly lend the witness cash to the amount of $ 1,648 08, which was all that he ever 

 [*480]  received for or on account of the said note. That Brown deducted for the use of the money loaned, $ 97 12, which the witness and Brown then understood to be the discount for interest, and for no other purpose. On being cross examined,  [**5]  the witness further said, that the note was drawn in blank, without the name of the payee inserted in it, when he passed it to Brown, having first inserted his name as payee, and that he considered Brown as the lender of the money, and not as his agent to procure a loan for him on the note, for a commission. That the note was first negotiated for the purpose of raising money at usurious interest, and that the above mentioned sum of $ 1,648 08, was paid by Brown to him, a few days after he had delivered the note to Brown.
The plaintiff then produced as a witness, George J. Brown, who testified that he had no recollection whatever of the said note, on which this suit was brought, other than from his name being endorsed thereon in his own handwriting; that he had no recollection of having discounted said note, or any other of said Brunner's notes, at usurious interest, his pecuniary affairs being then much embarrassed, so that he was compelled to scrape together all the means in his power for his own use; that he has discounted Brunner's note at bank for the use of the said Eichelberger, and that from his embarrassed situation at that time his memory might [**6]  have been very inaccurate. The defendant then offered John M'Fadon, a competent witness, who stated that he did not particularly recollect the note in question, but that the memorandum, then shown to him, was in his handwriting, that it corresponded precisely with the note, and that he believes it related to that identical note. That the money mentioned in the memorandum, he remembered having received from one Heidleback, who paid it to him after deducting the usurious rate of interest, mentioned in the memorandum, and that he carried the money to Brown, and gave it to him with the memorandum. Whereupon the defendant prayed the direction of the court to the jury, that if the jury believed that the note in question was made for the purpose of raising money for the accommodation of Martin Eichelberger, and without any value being received by Andrew Brunner, and that it was passed by Martin Eichelberger to George 

 [*481]  J. Brown, at a usurious rate of interest, then it was void, even if it passed afterwards, into the hands of a bona fide holder, and the plaintiff is not entitled to recover. And the defendant also prayed the court to direct the jury,  [**7]  that if they should believe that the said note was made by Brunner without consideration, for the accommodation of Martin Eichelberger, and by him was put into the hands of George J. Brown, that he might procure a loan of money thereon for said Eichelberger, and by George J. Brown was accordingly negotiated, to raise money, and that the sum of $ 1648 08 only, was raised thereon by George J. Brown, and paid over by him to Martin Eichelberger, then the plaintiff is not entitled to recover, notwithstanding he was not the lender of the money, but a subsequent holder for a valuable consideration, without notice of such previous usury. And the defendant further prayed the direction of the court to the jury, that if the jury should believe that the note was made by Brunner, without consideration, for the accommodation of Martin Eichelberger, and by Martin Eichelberger was put into the hands of George J. Brown, without any value paid therefor by Brown, that he might procure a loan of money thereon for Martin Eichelberger, and by George J. Brown was put into the hands of the aforesaid John M'Fadon, a broker, to negotiate to any purchaser,  [**8]  for the purpose aforesaid, who negotiated the same at a discount of $ 97 12, to one Heidleback, who became the first holder thereof for value, and that the proceeds thereof, after deducting the interest aforesaid, and his own commission as broker, was paid over by said M'Fadon to George J. Brown, who paid the same over to said Eichelberger, that then the said note was usurious and void in its inception, and the plaintiff not entitled in law to recover, notwithstanding the jury should be satisfied that he was not the lender of the money, but a subsequent holder for a valuable consideration, without notice of such previous usury. Upon these several prayers, the court a gave the instructions prayed for; and the plaintiff excepted. And the question to be decided by this court is, whether there is error in any of the opinions given by the court below? Upon an examination of the authorities relative to this subject, the principle seems 

 [*482]  to be well settled, that where a note commences in usury; or, in other words, where a note is tainted with usury at its birth, when it first becomes legally efficient and operative, so as to give to the holder a right of action upon [**9]  it, no subsequent holder, for a valuable consideration, without notice of such usury, can maintain a suit upon it--such note being declared by statute null and void. In Munn vs The Commission Company, 15 Johns. 55, Spencer, Justice, in delivering the opinion of the court, says "the true test, in distinguishing between a case, where the discount of a bill, at a higher premium than the legal rate of interest, will be deemed legal, by considering it the purchase of a perfect bill, and where it will be illegal, as a usurious loan of money, is to ascertain whether the bill was a perfect and available bill to the party holding it." He says "the principle is too well settled to be questioned, that a bill, free from usury, in its concoction, may be sold at a discount, by allowing the purchaser to pay less for it, than it would amount to at the legal rate of interest, for the time the bill has to run. The reason is obvious; as the bill was free from usury, between the immediate parties to it, no after transaction with another person can, as respects those parties, invalidate it. And I take it to be equally clear, that if a bill, or note, be made for the purpose of raising [**10]  money upon it, and it is discounted at a higher premium than the legal rate of interest, and where none of the parties whose names are on it, can, as between themselves, maintain a suit on the bill when it becomes mature, provided it had not been discounted, that then such discounting of the bill would be usurious, and the bill would be void." This principle is also recognized and adopted by the court in Powell vs Waters, 17 Johns. 181.

a Archer, Ch. J. and Hanson and Ward, A. J.

The note in question was made by Brunner for the accommodation of Eichelberger, and no right of action ever grew out of it, or attached upon it, in favour of any holder, until it was discounted at a usurious rate of interest, either by George J. Brown, according to the statement of facts upon which the first prayer to the court was founded; or according to the statement contained in the second prayer, until it was discounted at illegal interest by the person to whom Brown applied as the agent [**11]  of Eichelberger; or according to the statement of facts 

 [*483]  contained in the third prayer, until it was discounted at unlawful interest by Heidleback, through the agency of Brown, for the benefit of Eichelberger. Wilkie vs Roosevelt, 3 Johns. Cas. 66.
It has been contended, that the facts upon which the second prayer was made to the court, if true, do not prove the contract to be illegal and usurious. That prayer is in the following words: "That if the jury should believe that the said note was made by Brunner, without consideration, for the accommodation of Martin Eichelberger, and by Martin Eichelberger was put into the hands of George J. Brown, that he might procure a loan of money thereon for Martin Eichelberger, and by George J. Brown was accordingly negotiated to raise money, and that the sum of $ 1648 08 only was raised thereon by George J. Brown, and paid over by him to Martin Eichelberger, then the plaintiff is not entitled to recover, notwithstanding he was not the lender of the money, but a subsequent holder for a valuable consideration, without notice of such previous usury." If the note was negotiated [**12]  by George J. Brown, and the sum of $ 1648 08 only, was raised thereon, it certainly shows that the transaction was an usurious one. What is the import or meaning of the terms "to negotiate a note?" According to the meaning given to them by lexicographers, they import the passing a bill or draft for money, and that to pass a bill or draft for money, means to transfer such bill or draft to another proprietor. The prayer then in substance was, that if George J. Brown transferred Eichelberger's entire interest in this note, amounting to $ 1745 20, payable ninety days after date, and only raised by such transfer the sum of $ 1648 08, then the plaintiff was not entitled to recover. Can it for a moment be contended that such a dealing between the parties does not present a case of usury?
A note endorsed for the accommodation of the maker, and passed by him as security for an usurious loan, is an usurious contract in its inception, as the lender is in fact to be considered the first holder of the note. This principle is established in Jones vs Hake, 2 Johns. Cas. 60. The judge who delivered the opinion of the court, makes the following remarks: "The note in question [**13]  was made by Watkins, and endorsed by the 

 [*484]  persons whose names appear on it, for the accommodation of Watkins alone. No money was paid, or value given, by any of the endorsers. If the transaction be viewed in its true light, it was a contract made through the agency of Haskin, (who was a money broker,) between Watkins on the one part, and the person who loaned the money, and took the note as his security, on the other. The lender was in reality the first holder of the note, for the value given, whatever that may have been." He then says, "There can be no doubt, but that the contract was usurious, and the note therefore void."
DORSEY, J. dissented in part.
JUDGMENT AFFIRMED, b

b The rule that a negotiable instrument, which commenced in usury, is void, even in the hands of a bona fide holder, has been qualified by the act of 1824, ch. 200, which declares that nothing in the usury act of 1704, shall "destroy the right to sue and recover, by any legal or equitable assignee, endorsee, or holder of any bond, bill obligatory, bill of exchange, promissory note, or other negotiable instrument." Such persons having "received the same for a bona fide and legal consideration, without notice of any usury in the creation or subsequent assignment or negotiation thereof."

 [**14]  

15 of 23 DOCUMENTS 

WOOD'S EX'r. vs. FULTON & STARCK.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

2 H. & G. 71; 1827 Md. LEXIS 47 

June, 1827, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court. This was an action of debt upon an appeal bond dated the 25th of October 1816, executed by Thomas L. Savin, and others, with the defendant below, (whose executor the now appellant is,) as one of their sureties, to the plaintiffs, (the appellees,) reciting, that by a decree passed on the 6th of September 1816, in a cause wherein the said Fulton & Starck were complainants, and the said Thomas L. Savin, and others, were defendants, the said defendants were decreed to pay to the said Fulton & Starck the sum of $ 4472 50, with interest, &c. From which decree the said Savin, and others, were about to appeal, &c. The condition then was, that if the said appellants should prosecute their said appeal with effect, and satisfy and pay to the said Fulton & Starck their, &c. as well the said sum of $ 4472 50, with interest as aforesaid, in manner directed by the said decree, in case the said decree should be affirmed, as also all costs which should be awarded by the court of appeals, then, &c. The defendant, (the appellant's testator,) pleaded general performance. To which the plaintiffs replied nonperformance; and for breach assigned the nonpayment of the amount [**2]  of the decree which was affirmed in the court of appeals in June 1818, and $ 41 58 costs, there adjudged, &c. Rejoinder--performance and issue joined.

At the trial the plaintiffs gave in evidence the record of a cause lately depending in the court of chancery, and carried up to the court of appeals, in which cause the plaintiffs in this action were complainants, and Wesley Woods, Thomas L. Savin, and Sarah his wife, and Marcus Dennison, were defendants. The decree was that unless the defendants paid the complainants $ 4472 50 with interest, &c. on or before, &c. the mortgaged property mentioned should be sold, &c. And it is admitted by the defendant that the said record proved that the said complainants obtained a decree in said cause in chancery, to wit, on the 6th of September 1816, which decree is contained in said record, and that the present action is brought upon the appeal bond filed at the time of entering the appeal from said decree; and that after the affirmance of the said decree by the court of appeals on the 27th of June 1818, as set forth in the said record, the said property mentioned in the said decree was, on the 27th of July 1818, duly and regularly sold by virtue [**3]  of the said decree, for the sum of $ 5350; and that the report of the auditor, and the statement made by him dated the 7th of October 1818, and confirmed by the chancellor on the 8th of October 1818, shows the manner in which the proceeds of the sale of said property were applied, viz.

________________________________________________________________________________
Trustee's commission,	$ 224   	
Costs in Chancery,	114 81	
Costs in Court of Appeals,	41 58	
Auditor's fee,	4 67	
Fulton & Starck's claim to 27 July 1818,	
   $ 5784 43,	4964 94	
	
	$ 5350 00	
Amount of sales,	5350 00	
________________________________________________________________________________

Leaving a balance due to Fulton & Starck of $ 819 49, with interest from the 27th July 1818. And it was also admitted, that the costs of the court of chancery, mentioned in the said report and statement, including commissions allowed to the trustee of $ 224, and auditor's fee $ 4 67, are $ 343 48, and that the costs of the court of appeals are $ 41 58, and the costs of the record herein before mentioned, and procured to be offered in evidence in this cause by the plaintiffs is $ 20, and that the claim decreed to be paid to the plaintiffs was $ 4472 50, with interest, &c. making $ 5784 43; and that the amount of sales was $ 5350; leaving a deficiency [**4]  on the 27th of July 1818, between the said debt and interest, and the said proceeds of sales, of the sum of $ 434 43. The defendant then prayed the opinion and direction of the court to the jury, that upon the whole evidence, the plaintiffs were not entitled to recover a greater amount or sum of money than the interest on the mortgage debt decreed to be paid, from the date of the decree, and costs of the court of appeals, as awarded by their decree of affirmance. Which opinion and direction the Court, [Archer, Ch. J. and Hanson, A. J.] refused to give; and gave the following direction: That the plaintiffs were entitled to recover as well the difference between the debt and interest, and the actual proceeds of sale, as all costs in the court of chancery, including the commissions of the trustee, and the auditor's fee, and also the costs of the court of appeals, and of the record aforesaid, as also interest on the said difference or deficiency. The defendant excepted; and the verdict being for $ 1002 86, and judgment thereon rendered for the penalty of the bond, &c. the defendant appealed to this court; and his death being suggested after the appeal, the appellant, as his executor,  [**5]  appeared, &c.  

DISPOSITION:
JUDGMENT REVERSED, AND PROCEDENDO AWARDED.  

HEADNOTES:

The condition of an appeal bond to stay proceedings in equity, which contained a direct reference to the only decree passed by the chancellor between the parties mentioned in the bond, must be construed in connexion with the decree, in ascertaining its meaning.

An appeal by the representatives of a mortgagor, from a decree against them in favour of the mortgagee, for the sale of the mortgaged premises, unless the debt secured should be paid by a given day, and an appeal bond given by them to suspend execution of such decree, does not compel those representatives to guarantee the adequacy of the fund pledged by their ancestor, on an affirmance of the decree.

In an action on the appeal bond, in such case, the measure of damages is the actual injury suffered by the appellee from the delay, in whatever manner it arises. If the fund pledged was unequal to the payment of the debt at the time of the decree, the intermediate accruing interest was a clear loss to the plaintiff, occasioned by the delay of the appeal, and might properly have been made a standard for measuring his damages.

A decree, that unless the defendant shall, before a given day, pay to the complainant, or bring into court to be paid to him, a certain sum of money, the mortgaged property mentioned in the proceedings should be sold, is a decree in rem.  

COUNSEL:
R. B. Magruder, for the Appellant, contended, 1. That a decree in rem, on bill to foreclose, or to obtain a sale for the satisfaction of a mortgage debt, can never be extended to any property of the debtor, other than that which is pledged, nor can it operate in personam. 2. That if it cannot affect the principal debtor, a surety ought not to be made answerable to any greater extent than the principal would be. 3. That in a suit upon an appeal bond, where the decree appealed from is in rem, the delivery of the thing pledged to the plaintiff, ought to exempt the obligors from all liability from damages, except what may be awarded by the decree of affirmance. 4. That in an action on an appeal bond, the court will construe the bond with reference to the decree or judgment appealed from, and will qualify, or correct, an error in any recital or condition of such bond; and the court below erred in not so doing. 5. That the bond on which this action was founded was in the alternative, and was not for the payment of money absolutely; and the court below erred in not so directing the jury, upon the evidence before them.

On [**6]  the first point, he cited Dunkley vs Van Buren, 3 Johns. Ch. Rep. 331. Taylor vs Townsend, 6 Mass. Rep. 264.

On the third point, he cited 2 Tidd's Pr. 1131, 1132, 1074, 1075. Zink vs Langton, 2 Dougl. 751, (note 3.) Frith vs Leroux, 2 T. R. 59. Contee vs Findley, et al. 1 Harr. & Johns. 332. Butcher vs Norwood, Ib. 485. The acts of 1809, ch. 153, s. 4; 1713, ch. 4; 1793, ch. 75; 1819, ch. 163, s. 3. Karthaus vs Owings, 6 Harr. & Johns. 139.

On the fourth and fifth points, he cited Lord Arlington vs Merricke, 2 Saund. 414. Dance vs Gilder, 4 Bos. & Pull. 34. 1 Bac. Ab. 654. The act of 1785, ch. 72, s. 3. Bell vs Brown, 3 Harr. & Johns. 484.

Moale and R. Johnson, for the Appellees, cited Karthaus vs Owings, 6 Harr. & Johns. 139. The State use Rogers vs Krebs, Ib. 31. Thompson vs M'Kim, Ib. 331, 333.  

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

OPINIONBY:
EARLE 

OPINION:

 [*75]  EARLE, J. delivered the opinion of the court. The action instituted in this case in the court below, is an action of debt on an appeal bond, against the appellant as surety. In the year 1811, one John M. Dennison mortgaged certain leasehold property in [**7]  the city of Baltimore to Starck and Fulton, to secure them against any risk they might run by endorsing promissory notes in bank for Dennison & Savin, to the supposed amount of about $ 3000.
There was a proceeding in chancery on this mortgage, in 1814, against Wesley Woods, the administrator of John M. Dennison, and Marcus Dennison, his son, about fourteen years of age, and Sarah Savin, his daughter, of full age, who had intermarried with Thomas L Savin; and on the 6th of September 1816, a decree was passed by the chancellor, that unless the defendants, or either of them, shall before the 6th day of October following, pay to the complainants, or bring into the court to be paid to them, the sum of $ 4472 50, with interest on $ 4462 75, part thereof, from the 7th day of September 1813, until paid or brought in, the mortgaged property mentioned in the proceedings should be sold by a trustee, named in the decree.
On the 28th of October 1816, the defendants appealed from this decree; and to suspend further proceedings, entered into the appeal bond, referred to in the record.
At June term 1818 of the court of appeals, this decree was 

 [*76]   [**8]  affirmed, and a sale of the mortgaged premises having been made by the trustee soon after, the same sold for $ 5350, a sum less $ 819 49, than the amount of the mortgage debt, interest and costs, and the expenses attending the sale. This deficiency is the sum claimed by the appellees in this suit on the appeal bond; and whether the court were correct in their instruction to the jury, to make this the measure and standard of damages to be found by them, is the question we are now called upon to examine and decide.
This question makes it necessary for the court to give a construction to the appeal bond, and to advert to the act of assembly, with a view to which it was framed. The condition of the appeal bond is in these words: "Whereas by a decree of the high court of chancery, passed on the 6th day of September 1816, in a cause wherein the said David Fulton and George Starck, are complainants, and the said Thomas L. Savin, Sarah Savin, Wesley Woods, and Marcus Dennison, are defendants, the above bound Thomas L. Savin, Sarah Savin, Wesley Woods, and Marcus Dennison, are decreed to pay to the said David Fulton and George Starck, the sum of four thousand [**9]  four hundred and seventy-two dollars and fifty cents, with interest on four thousand four hundred and sixty-two dollars and seventy-five cents, part thereof, from the 7th day of September 1813; from which said decree the aforesaid Thomas L. Savin, Sarah Savin, Wesley Woods, and Marcus Dennison, are about to appeal to the high court of appeals. Now the condition of the above obligation is such, that if the said appellants do and shall prosecute their said appeal with effect, and satisfy and pay to the said David Fulton and George Starck, their executors, administrators or assigns, as well the said sum of four thousand four hundred and seventy-two dollars and fifty cents current money, with interest as aforesaid, in manner as by the said decree is provided and directed, in case the said decree shall be affirmed, as also all costs which shall be awarded by the court of appeals, and in all things perform such decree as by the said court of appeals shall be made in the premises, then the above obligation to be void; otherwise to remain in full force and virtue."

 [*77]  The condition of this bond has a direct reference to the only decree passed by the chancellor between [**10]  the parties, which must, therefore, be considered in connexion with it, in ascertaining its meaning. Taking them together, it is to be seen at the first glance, that a decree for the absolute payment of money is recited; whereas that appealed from, is a decree against an administrator and representatives, for the sale of mortgaged premises, and is unquestionably a decree in rem--One intimates a general judgment, that would involve the personal responsibility of the defendants, and subject their persons and property to execution; the other points to a specific adjudication, rendering liable a certain fund, out of which is to be raised the mortgage money of the complainants. The last is clearly the thing about which the contracting parties proposed to contract and it will be in strict unison with the rules of contxuction, so to expound the first and more general terms, as to confine their meaning, and make them comprise no more than the object, which was within the immediate view of the parties. 2 Com. on Cont. 533.
To consider then this appeal bond, in the same way, as if it had truly recited the chancellor's decree, the next inquiry is, what operation will it have thereon,  [**11]  in reference to the act of 1713, ch. 4? It will certainly be a security for the costs, because they are within the express terms of its stipulations; and it having worked a suspension of proceedings in the court below, it would seem a demand of justice, that the party delayed should be secured in a compensation for damages. But the interesting point is, by what criterion shall those damages be measured? This is not like the case of Karthaus vs Owings, where this court determine, on an appeal in replevin, that the value of the property to be returned should measure the damages sustained by the party.
There the appellant, by force of the judgment appealed from, had to do an act, the neglect to do which was injurious to the appellee. Here by the terms of the decree, the appellants may be considered as being passive, and bound to do nothing. Unless they pay or bring the mortgage money into court by an assigned day, the day liable to be enlarged by the affirmance of the decree, the mortgage premises are to be sold; and as it is within their option to perform or not, their omission to pay or 

 [*78]  bring the money into court cannot be said to produce an injury or damage to the [**12]  mortgagees.
If this is not the source of damage to the party, we clearly think it is not to be found in the deficiency of the fund to pay the mortgage debt and interest. The law does not compel those representatives to guarantee the adequacy of the fund, pledged by their ancestor; and there is nothing in their obligation, nor in the act of assembly in reference to which it was made, to oblige them to do it. In their stipulation to prosecute with effect, they have undertaken to proceed with their appeal to its successful termination; but in case of failure, they have not bound themselves to pay the debt, nor make good the fund; and this is not the legal and necessary consequence of a forfeiture of their bond. They are liable in damages for the actual injury suffered by the appellees from the delay, and this appears to the court to be the legitimate ground on which to estimate damages; and we, therefore, are of opinion an error was committed in rejecting the interest on the debt, proffered by the counsel for the defendants. If the fund pledged was unequal to the payment of the debt at the time of the decree, the intermediate accruing interest was a clear loss to the plaintiffs, occasioned [**13]  by the delay, and might properly have been made a standard for measuring their damages.
We do not, however, mean to say, that a loss of interest was the only injury sustained by them. This is all in the case which to us has that appearance. It was certainly competent to the plaintiffs to have insisted on any further damage suffered by them, provided it was in their power to have shown that it proceeded from the suspension caused by filing the bond. Injury from delay seems to us the true test, and in whatever manner it arises, evidence of it in a case like this is fit and proper for the consideration of the jury.
JUDGMENT REVERSED, AND PROCEDENDO AWARDED.  

16 of 23 DOCUMENTS 

OWINGS'S EX'rs. vs. OWINGS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

1 H. & G. 484; 1827 Md. LEXIS 33 

June, 1827, Decided 

PRIOR HISTORY:
 [**1]   ERROR to Anne-Arundel County Court. Assumpsit for money lent; for money had and received, and on an insimul computassent. Non assumpsit pleaded, and issue joined.

At the trial the plaintiff, (now defendant in error,) offered evidence, that Richard Owings, the testator of the defendants, (now plaintiffs in error,) in his lifetime, proposed to the widow of Beale Owings, of Baltimore county, the mother of the plaintiff, that if she would decline taking out letters of administration on her deceased husband's estate, and permit him to obtain such letters, that upon the settlement of the estate he would pay to her all the commissions which should be allowed him by the orphans court for the settlement of said estate; that after the settlement of the said estate, and after the said Richard Owings had received and been allowed as aforesaid the sum of $ 1,069 63, as his said commission, it was agreed by and between the said Richard and the said mother of the plaintiff, that the said commission should not be paid to the said widow, but should be paid, with interest thereon, to the children of the said widow, viz. Harriet Owings, Mary Owings, and Nathan Owings, in equal portions; and the [**2]  said Richard Owings promised and agreed with said widow to pay the same accordingly. That afterwards, upon the marriage of said Harriet, the said Richard paid to her the sum of $ 500, which he told her was the portion to which she was entitled. The defendants then offered in evidence the will of Richard Owings, dated the 17th of October 1818, containing, among others, the following devises, viz. "Item. I give and bequeath unto my two grandchildren, Nathan H. Owings and Mary Owings, children of my son Beate, all my tract of land lying in Baltimore county, on Morgan's Run, called Point Espright, and known by the name of Lindsey's Meadows, in equal portions to each of them, their heirs and assigns, forever, as tenants in common; also one hundred dollars to each of them, to be paid out of my personal estate." The defendants further proved by the person who wrote the will, that the devises and bequests made by the testator to Nathan and Mary Owings, were declared by him, at the time of making his will, to be made for the purpose of placing said Mary and Nathan on the same footing with Harriet Iiams, to whom he had already paid the sum of money proved as above mentioned to have been paid.  [**3]  The defendants then prayed the court to instruct the jury, that the plaintiff was not entitled to recover. And the Court, [Dorsey, Ch. J. and Kilgour, A. J.] instructed the jury, that if they believe the testimony offered on the part of the plaintiff, that the agreement on the part of the widow to relinquish her right to the administration on her deceased husband's estate, and the promise of Richard Owings, in consideration thereof, to pay the commissions to her, with his allowance and receipt of the sum of money, is a sufficient consideration to support an action of assumpsit therefor against the said Richard Owings by the said widow. That the subsequent agreement between the said Richard Owings, and the said widow, transferred to the said children such an interest in the money received as such commissions by Richard Owings, as to enable them to recover the amount thereof in an action of general indebitatus assumpsit. That the devise and bequest made by Richard Owings to the plaintiff, is not in contemplation of law a satisfaction of the plaintiff's claim, or any part thereof. The defendants excepted. Verdict and judgment for the plaintiff, and the defendants brought the present [**4]  writ of error.  

DISPOSITION:
JUDGMENT REVERSED.  

HEADNOTES:

A promise by a debtor to his creditor to pay his debt to a third person, will not enable such person to maintain an action at law, in his own name, for its recovery.

Where one person pays money to another for the use of a third, or where a person, having ready money belonging to another, agrees with that other to pay it over to a third, in both these cases an action may be brought in the names of the persons beneficially interested.

A promise to one to pay a sum of money to several other persons in equal portions, where it was not the intention of the contracting parties that such other persons should receive or recover by law, the entire sum, and then divide it among themselves, if the foundation of an action at all, will confer a right to maintain a separate action for each part.

Neither a devise of land, nor a legacy of a less amount than the sum due, is considered in law a satisfaction of a pecuniary debt.

It is not consistent with the policy of the law to encourage agreements, by which the right to administer on the estates of deceased persons, is declined in favour of one, who contracts to pay the declining party, for permission to administer, all the commissions allowed for the settlement of such estates, as in bad hands the practice might lead to gross violations of trusts, and the most pernicious consequences.  

COUNSEL:
Magruder, for the plaintiffs in error, contended, 1. That the promise by their testator, stated in the bill of exceptions, was nudum pactum.

2. If for the promise there was such a consideration as would support an action at law, the action ought to have been brought in the name of the mother of the defendant in error, to whom the promise was made, and from whom the consideration moved.

3. If the suit could be brought by the children, they ought to have united in one suit, instead of bringing separate suits on one promise.

4. The devise to the plaintiff below, in the will of the testator, of the defendants, is a satisfaction of the claim set up in this action.

He cited, in his argument upon the above points, Selw. N. P. 39, 40, 41, 45. Crow vs Rogers, 1 Stra. 592. 1 Com. on Cont. 26. Toller, 337. Chaplin vs Chaplin, 3 P. Wms. 247. 1 Com. Dig. 309, (note.)

Shaw, for the defendant in error, cited Pow. on Cont. 211, 206, 207. Forth vs Stanton, 1 Saund. 211, b. Pillans vs Mierop, 3 Burr, 1673. 1 Com. Dig. 310. Partridge vs Partridge, 2 Harr. & Johns. 63.

Curia adv. vult.  

JUDGES:
The cause was argued at the last June term,  [**5]  before BUCHANAN, Ch. J. and EARLE, STEPHEN, and ARCHER, J. ARCHER, J. dissented.  

OPINIONBY:
STEPHEN 

OPINION:

 [*487]  STEPHEN, J. at the present term, delivered the opinion of the Court. [After stating the case he proceeded as follows:] The question for this court to determine, is whether the court below gave a correct exposition of the law to the jury upon the prayer made to them? In deciding upon this case several questions present themselves for the consideration and adjudication of this court. First. Was there a sufficient consideration to sustain the promise made by Richard Owings to the mother of the plaintiff? Secondly. If there was, ought the suit to have been brought by the mother of the plaintiff, the promisee; or was the plaintiff, the person beneficially interested in that promise, competent to maintain the action in her own name? Thirdly. If she was competent to support the action in her own name, ought she not to have joined with her in the action her co-beneficiaries under said contract; or, in other words, was each of the children, who were intended to be benefited by said agreement, competent to support an action for their proportional interest? And lastly [**6]  . Whether there is any thing in the said agreement between the mother and the grandfather, which it is contrary to the policy of the law to sanction or allow? As to the sufficiency of the consideration to support the promise, in 1 Powell on Contracts, 344, the law is laid down to be, in reference to this subject, that "a consideration may arise or be created by doing or permitting somewhat to be done to the prejudice or loss of one of the parties. So that it is not absolutely necessary that the consideration for a contract imports some gain to him that makes the contract; but it is sufficient that the party, in whose favour the contract is made, foregoes some advantage or benefit which otherwise he might have taken or had, or suffers some loss in consequence of placing 

 [*488]  his confidence in another's undertaking." In illustration of this principle, in page 347, he refers to Webb's case, 4 Leon. 110, "where in an action upon the case the plaintiff declared, that whereas C. was indebted to J S, and J S to the defendant; the defendant, in consideration that the plaintiff would procure J S to make a letter of attorney to the defendant to sue C, promised [**7]  to pay and give to the plaintiff £  10. It was objected that here was not any consideration to induce the assumpsit; for that the defendant, by this letter of attorney, got nothing but his labour and travel; but the exception was not allowed of; because in this case, not so much the profit which redounded to the defendant, as the labour of the plaintiff in procuring of the letter of attorney, was to be respected." So in the case now before this court, it is not so much the emolument which the defendants' testator derived from his undertaking or agreement with the mother of the plaintiff, that is to be regarded as the valuable and beneficial privilege which the promisee parted with in transferring to the defendants' testator her right of administration. In Pillans vs Mierop, 3 Burr 1673, Mr. Justice Yates says, "any damage to another, or suspension or forbearance of his right, is a foundation for an undertaking, and will make it binding, though no actual benefit accrues to the party undertaking."
As to the right of the plaintiff to maintain the action in her own name, in the case of Schemerhorn vs Vanderheyden, 1 Johns. 139, [**8]  the court say, "we are of opinion that where one person makes a promise to another for the benefit of a third person, that third person may maintain an action on such promise. This was the doctrine of the King's Bench in the case of Dutton vs Pool. affirmed in error. The same principle has since that time been repeatedly sanctioned by the decisions of the English courts"--Vide 3 Boss. & Pull. 149, in the notes to Pigot vs Thompson. In that case Buller, Justice, is stated to have said, "if one person makes a promise to another for the benefit of a third, that third may maintain an action upon it." In the case of Martyn vs Hind, 2 Cowp. 443, Lord Mansfield, in speaking of the case Dutton vs Pool, reported 1 Vent. 318, and in 2 Lev. 210, is reported to have said, "it is matter of surprise, how a doubt could have 

 [*489]  arisen in that case. It was a promise to the father by a person in remainder, that if he would leave so much wood standing, he would pay his daughter £  1000, the value of the wood, which the father had intended to cut down. The daughter, upon the father's death, brought an action for the [**9]  £  1000, and the court held she was entitled to bring the action. And upon error the judgment was affirmed." In the note to Pigot vs Thompson, 3 Bos. & Pull. 149, it is said, "with respect to the right of a third person to sue upon a parol promise made to another for his benefit, there is great contradiction among the older cases. But in Dutton vs Pool, the point seems to have been very fully considered, and very solemnly decided. There the father of the plaintiff's wife being seized of a wood, which he intended to sell to raise fortunes for his younger children, the defendant being his heir, in consideration that he would forbear to sell it, promised to pay his daughter, the plaintiff's wife, £  1000, for which the action was brought; and it was held, that the plaintiff might well maintain the action. Which decision was affirmed in the Exchequer Chamber. In that case, indeed, some stress was laid upon the nearness of relationship between the plaintiff's wife and her father, to whom the promise was made; but another case has since occurred to which that reason does not apply;" and the case of Martyn vs Hind, above mentioned, is referred to.
But in this [**10]  case the promise was made to the mother for the benefit of her children, and therefore the decision of the court in Dutton vs Poole is in perfect accordance with the judgment of the court below rendered in this case, as to the capacity of the plaintiff to sue in her own name, if the cases are analogous or can be assimilated in point of principle. In the case of Dutton vs Poole, there was nothing due from the son to the father, which the son promised the father he would pay to the daughter; in that case, as in this, there was no pre-existing debt due to the father from the son, upon which the promise could operate by way of transferring it as a chose in action; but it was simply an engagement, that if the father would forbear selling the wood in which the son had an interest as heir at law, he would pay the daughter the £  1000, which it was the intention of the father to raise by selling the wood. In that case, then, 

 [*490]  the original promise or undertaking was for the benefit of the daughter; the father at the time the promise was made had no claim whatever against the son upon which the promise for the benefit of the daughter was intended to operate, and consequently [**11]  it could not be viewed in the light of an assignment of a chose in action. But in the case now under adjudication, the money had actually been received by the grandfather at the time the promise was made by him to the mother of the plaintiff; she had nothing more than a chose in action, which could only be reduced into possession by a suit at law. In the late edition of Com. Digest, 309, (note P,) will be found a most elaborate examination of most, if not all the authorities which have a bearing upon this subject. In that note, the author says, "There is nothing, however, illegal in transferring a contract unbroken, or even a debt due, the transfer is available in equity, and the assignor cannot afterwards sue upon the contract for money had and received, that being an equitable action, and he having no equity; nor can he afterwards release it, if the debtor knows of the assignment. If, too, where the assignee is about to sue upon it in his own name in equity, or in name of the assignor at law, the debtor promises to pay him if he will forbear; (e. g.) on the time of forbearance elapsing he may sue him in his own name. Here the suit, though in form on a new contract,  [**12]  is in effect founded on the old one as well, for the assignee thereby recovers what is due for the breach of it, which recovery bars the assignor's action; and in this indirect manner may a stranger to a contract sue thereon. A contract may be assigned by word of mouth, for this reason, if no other, that the transfer passes but an equity. It forms no exception to the rule, (that at common law simple contracts cannot be transferred by the owner,) that if A, having ready money belonging to B, agrees with B to pay it over to C, C may sue A for it in his own name, since the reason is, that by the agreement the money has changed owners, and A has become C's agent, as he was B's before. This case, and that where B pays money to A for the use of C, when C may sue for it, are in principle the same. However, to enable C to sue as above, it seems requisite that a specific sum of money, or what is equivalent thereto, has been deposited with A, upon which the assignment 

 [*491]  may operate; and that A's assent to pay C a debt due from himself to B, would be unavailing." This valuable note in Comyn has been more copiously extracted from on account of the clearness and perspicuity, with [**13]  which the law upon this subject is therein laid down and explained. If in the case now before this court, the promise by Richard Owings, the grandfather, had been in the first instance to the mother, for the benefit of the children; or in other words, if he had promised the mother to pay the commissions to the children, in that case the promise would have enured for the benefit of the children, and upon the authority of Dutton vs Poole, the children might have supported an action in their own names; but it was not until after the money was received by him, and had become a debt due to the mother, that it was agreed between him and the mother, that it should be paid over to the children; and was consequently nothing more than a promise made by A, indebted to B, to pay C that debt; and no case has been found where it has been decided, that under such circumstances C could maintain the action in his own name; such a case being essentially different from the one where one person pays money to another, for the use of a third, or where a person, having ready money belonging to another, agrees with that other to pay it over to a third; in both which cases it is admitted the action [**14]  might be brought in the names of the persons beneficially interested. As to the position that the devise and bequest operated as a satisfaction of the debt, it is considered not to be sustainable, because it is well settled, that a devise of land is not considered in law a satisfaction of a pecuniary debt, nor can the legacy in this case operate that effect, because it is of a less amount than the sum due; and even if the parol declarations of the testator, made cotemporaneously with the will, were admissible, which it is unnecessary to decide, there is no proof that possession had ever been taken of the land, or that the legacy had ever been paid. This court is further of opinion, that upon the evidence in this cause separate suits would have been sustainable by each of the children for their respective proportions, if the actions could have been brought in their names; it is not the case of a promise made to them jointly, but a promise made to their mother for their benefit by the defendant's testator, 

 [*492]  whereby he engaged to pay the money due to the mother, to her three children, Harriet, Mary, and Nathan Owings, in equal portions, so that it was not the intention [**15]  of the contracting parties, that the children should receive or recover by law the entire sum, and then divide it among themselves, but that each should be paid his or her separate part by the grandfather; from whence it follows, that if a resort to legal process become necessary to enforce payment, each would have had a right to maintain a separate action for his or her part; provided the case had been such that suits could have been brought in their own names. It is not deemed necessary to go into an inquiry how far such agreements as the present ought to receive the countenance or sanction of the law, as the court do not discover in this case that the rights of any of the parties interested have been injuriously affected by the transfer of the right of administration; but it is certainly not consistent with the policy of the law to encourage such transfers as in bad hands, the practice might lead to gross violations of trusts, and the most pernicious consequences. From this view of the law governing this case, the court are of opinion that the judgment below ought to be reversed.
ARCHER, J. dissented.
JUDGMENT REVERSED.  

17 of 23 DOCUMENTS 

RABORG vs. THE BANK OF COLUMBIA.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

1 H. & G. 231; 1827 Md. LEXIS 15 

June, 1825, Argued 

June, 1827, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court. This was an action of assumpsit, in which the writ was sued out against Christopher Raborg, (the appellant,) as surviving partner of Christopher Raborg. The declaration contained four counts. The first count averred that Jacob Wagner on the 23d of January 1817, at George-Town, in the District of Columbia, made a promissory note, bearing date the day and year aforesaid, and thereby promised to pay Christopher Raborg and Christopher Raborg, junior, by the name of Messrs. C. Raborg & Son, or order, $ 1500, for value received, negotiable at the Bank of Columbia; that the payee endorsed the said note to the plaintiffs (the appellees.) The second count was like the first, except that it described the note as payable to the said Christopher Raborg, by the name of Christopher Raborg and Son, by which name and style the said Christopher Raborg then and there carried on business and trade as a merchant, &c. The third count was like the first, except that it described the note as payable to one Christopher Raborg, surviving partner of Christopher Raborg, by the name of Christopher Raborg and Son. The first count omitted to aver the presentation of the note [**2]  for payment. The second and third counts averred it to have been presented for payment to Wagner on the 28th of March 1817. The fourth count was for money had and received by the defendant, to the use of the plaintiffs. The general issue was pleaded.

At the trial the plaintiffs offered in evidence the following promissory note, which was admitted to be drawn by Jacob Wagner, and endorsed by Christopher Raborg, the defendant, by the name of Christopher Raborg & Son:

"$ 1500.     23 Jan'y. 1817.

Sixty days after date, I promise to pay Messrs. C. Raborg & Son, or order, fifteen hundred dollars, for value rec'd, negotiable at the Bank of Columbia.     Jacob Wagner.

Credit the drawer. C. R. & Son."

(Endorsed.) "Pay the contents of the within note to the President, Directors and Company of the Bank of Columbia, or order, value received. Christopher Raborg & Son."

The plaintiffs also offered evidence, that on the 28th day of March, in the year 1817, payment of the said note was demanded from Daniel Kurtz, at the banking-house of the plaintiffs in George-Town, in the District of Columbia, the teller of the Bank of Columbia aforesaid, and that the said Jacob [**3]  Wagner resided at that time, and for some time before, in Prince-George's county, in the state of Maryland, and that said Kurtz was agent for said Wagner, in attending to the payment and renewal of the notes of said Wagner, held by said plaintiffs, or deposited with them for collection, and that upon the said demand the said note was not paid, and on the same day a letter was put into the post office at George-Town, by the agent of the plaintiffs, directed to said Christopher Raborg, at Baltimore, where he resided, informing him that the said note was not paid, and that he would be looked to for payment thereof. And also gave evidence, that it had been the custom of the plaintiffs ever since their incorporation, and of all the other banks and merchants in the District of Columbia, to demand payment of notes on the fourth day after they became due, and not on the third. And the plaintiffs offered no evidence to show a personal knowledge by the defendant of the usage aforesaid other than the uniformity and notoriety of the usage for the time aforesaid. The defendant proved that Christopher Raborg, senior, the father of the present defendant, died in the month of June, 1815, and before [**4]  the making and delivery of the said promissory note on which this action is brought. The plaintiffs then moved the court to direct the jury, that if they believed the evidence so offered by the plaintiffs, they were entitled to recover. Which direction and opinion the Court, [Dorsey, Ch. J. and Hanson and Ward, A. J.] accordingly gave. The defendant excepted; and the verdict and judgment being against him, he appealed to this court.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

W drew a promissory note, which did not bear date at any particular place, but was made negotiable at the plaintiffs' bank: it was in favour of C R & Son, or order, and by the defendant, in their name, specially endorsed to the plaintiffs, whose bank was at G. Not being paid at maturity, on the day after the third day of grace, it was presented to an agent of W at the said bank, appointed for the purpose of attending to the payment or renewal of W's notes held by the plaintiffs for payment, which being refused, notice of its dishonour was put into the post office at G. directed to C R, (the defendant,) at B, where he lived. W, when the note became due, lived at P G. It appeared that it was the custom at G, to demand payment of notes on the fourth day after they became due.--Held, that the defendant was liable on his endorsement to the plaintiffs.

In an action on a promissory note drawn in favour of C & R and endorsed by R in their names, to P, the writ was against R as surviving partner of C, but the declaration was not. It was proved that C died before the making of the note. Judgment was rendered against R without stating, as surviving partner. On appeal--Judgment affirmed.

Where the appellate court had reversed a judgment and awarded a procedendo, and it afterwards, during the same term, appeared that there was a material mistake in the record upon which they acted, they struck out the judgment, &c. and ordered a writ of diminution (note).  

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

OPINION:

 [*234]  Mayer, for the Appellant, contended, that the judgment ought to be reversed.
1. Because the judgment could, if at all, have been against the defendant, only as a surviving partner, agreeably to the writ.
2. Because the deolaration does not aver the partnership of the Christopher Raborgs, or the survivorship of the defendant.
3. Because upon the form and terms of the prayer the court below were not authorized to direct the jury to find the verdict which they gave.
4. Because demand of payment of the note was not made in time, and of the proper person, or at the proper place.
On the first and second points, he [**5]  referred to 1 Chitty's Plead. 294. Cabell vs. Vaughan, 1 Wms. Saund. 291, g. (note.) Jell vs. Douglas, 6 Serg. & Lowb. 451. He contended that the defects in the declaration were not cured by the act of 1809, ch. 153, s. 2.
On the third point, he contended, that as there was no proof of partnership, the direction of the court was too general; they should have given a special direction.
On the fourth point he contended, that the demand on the maker of the note was not made in time--of the proper person, and at the proper place. The demand was not in time, being made on the fourth day after the day of payment. In Renner vs. Bank of Columbia, 22 U.S. 581, the decision went upon the ground that the party had knowledge of the custom in the District of Columbia to protest on the fourth day. The custom is not considered as a part of the consideration of the note, or forming any part of the contract. The days of grace are given under the usage as an indulgence in extending the time when the note becomes due. It is to rebut the evidence of negligence in presenting the note for payment. A custom like this is in derogation of [**6]  the common law, and is to be construed strictly. The custom is to be proved, and it must be shown that the party had knowledge of, and was bound by it. In Bank of Columbia vs. Magruder, 6 H. & J. 172, this court decided, that if the party knew the custom, he was bound by it. Here the court below went upon the notoriety 

 [*235]  of the custom. Both the maker and endorsers of the note resided out of the District of Columbia, and the custom did not bind them. The place where the note was drawn is not stated in the note. There was no privity between the maker and endorsers, and the plaintiffs, (the endorsees.) The law of this state is to govern as to the days of grace to be allowed. Robinson vs. Bland, 2 Burr 1077. Although the note is expressed on its face to be negotiable at the Bank of Columbia, yet it is not to be implied that it is to be paid there. The contract is to be performed in this state where the maker and endorsers resided, and where the holders seek to obtain payment. Mandeville vs. Union Bank of George Town, 9 Cranch 9. If the endorser is bound by the custom, yet the demand of payment was not made of the proper [**7]  person. There was no proof of a personal demand of the maker; it was merely made of Kurtz, who is said to be his agent. Where a note is made payable at a particular place, it constitutes a part of the contract, on the ground that the parties agreed it should be paid there; yet the law is that the demand of payment must be made of the drawer personally. Where there is a legally constituted agent, a demand of him is considered different, as in Philips vs. Astling, 2 Taunt. (Eng.) 206, where the agent was the acceptor of the bill.
G. H. Steuart, for the Appellees. On the first and second points, he cited 1 Chitty's Plead. 37. Eccleston vs. Clipsham, 1 Wms. Saund. 154, (note 1.) Slipper vs. Stidstone, 1 Esp. 47. Gow on Part. 208, 209. Goelet vs. M. Kinstry, 1 Johns. Cas. 405. Wood vs. Braddick, 1 Taunt. (Eng.) 104. Smith vs. Ludlow, 6 Johns. 667. Spalding vs. Mure, 6 Term. R. 363.
On the fourth point. In Jackson vs. The Union Bank of Maryland, 6 H. & J. 146, this court decided that the party dealing with a particular bank [**8]  was bound to notice the custom prevailing in the place where the bank is established. So here the maker and endorsers of the note in question, transacting business with the Bank of Columbia, were bound to notice the custom prevailing at that bank. Here the note was made negotiable at the Bank of Columbia, and it was bound by all the consequences which flow from the custom of that 

 [*236]  bank. Usage must be respected in transactions of this nature. Halsey vs Brown, 3 Day 346. The non-residence of the drawer and endorser does not affect the case. M'Gruder vs. Bank of Washington, 9 Wheat. 598. In The Bank of Columbia vs. Magruder, 6 H. & J. 172, this court said, that knowledge of the custom must be known to the party, yet they did not say how that knowledge was made to apply. Here the note was made negotiable at the Bank of Columbia, showing that it was to come under the usage and custom adopted by that bank, and existing in the District of Columbia, in the collection of the notes when they became payable. The lex loci is to govern. Here, by the note, it is plain as to where it was to be paid. The contract was [**9]  executed with reference to its performance in the District of Columbia. The demand was made on the agent indicated by the drawer himself. He could not take advantage of the demand not having been legally made, when he directed it should be made of his agent. Philips vs. Astling, 2 Taunt. (Eng.) 206.
F. S. Key, on the same side. The validity of the local customs in the District of Columbia has been established both in the supreme court of the United States and in this court. The usage is not contrary to the law of the land. Where this usage of four days of grace prevails, it is to be regarded and sanctioned in the same manner as the usage of three days of grace prevailing in other places. The three days of grace, it has been said, is a sort of indulgence. At common law, the note is due at the end of the time stipulated; but usage has given three days of grace; so that a note for 60 days is a note for 63 days. It is so settled in Renner vs. Bank of Columbia, 22 U.S. 581. It is a contract to pay on the 63d day. If within the usage of the District of Columbia, it is then 64 days; and the endorser is not liable until the maker makes [**10]  default, and that is at the end of the 64th day. Here the contract was made with a view to its performance where the four days of grace prevailed. The parties to a contract, no matter where they reside, may make the performance of it where they please. Where then did the parties look to its performance, when they made this contract? No matter where the note was endorsed, 

 [*237]  it was to be performed where the place of business of the drawer was. Before the endorser is answerable the drawer must be put in default, and to put him in default, it must be the non-fulfilment of his contract according to the usage of the place where it was to be performed. The presumption is, that the endorser knew where payment was to be demanded. Every person who takes a note is presumed to know where payment of it is to be demanded. Here the payment was to be demanded in the District of Columbia, and if demandable there, it was payable there. The contract of the maker was to pay the note at the end of 64 days; and the contract of the endorser was, that if the maker did not then pay, he would. This too was accommodation note for the benefit of the maker. The endorsing of the note was a letter [**11]  of credit. Violett vs. Patton, 5 Cranch 142. The note was made negotiable at the Bank of Columbia, which shows the intention of the parties; and the note was discounted at that bank for the benefit of the maker. Every endorser is considered as a drawer; and the defendant is placed here as the drawer of the note, and to stand in his place. Where a note is to be discounted at a bank, it is different from an ordinary note, which is not discounted, but to be collected. Yeaton vs. Bank of Alexandria, 5 Cranch 49. If the demand had been made to this note on the third day, it would be liable to be objected to. The drawer would say it was against the contract--that the note was not due. This objection the endorser would also make. To find out when a note was due, you must look to the place where it was negotiated. But it has been said by the appellant's counsel, that the usage was established only where the parties knew of the custom, and had knowledge of it. This was the case here. By drawing the note, and endorsing, the drawer and endorser are presumed to know the custom. The presumption of knowledge may be made from circumstances. In this case the facts [**12]  justified the court in giving the direction prayed by the plaintiffs. It is stated in the evidence that the usage was notorious; being so, the court did right in their direction to the jury. By endorsing the note it brought notice of the usage to the knowledge of the endorser. As the note was made negotiable at the Bank of Columbia, it shows that the maker and endorser were answerable 

 [*238]  for all the consequences, and they were bound to know of the usage, by having made and endorsed the note. The Bank of Columbia vs. Okely, 4 Wheat. 235, 243. Knowledge must be inferred from circumstances, and actual knowledge is not necessary to be proved. Renner vs. Bank of Columbia, 22 U.S. 581. Cutler vs. Powell, 6 Term. R. 320. Noble vs. Kenneway, 2 Doug. 511. Vallance vs. Dewar, 1 Camp. 503, 508, (and note.) Halsey vs. Brown, 3 Day 346. Smith vs. Wright, 1 Caine's Rep. 43. The Bank of Utica vs. Smith, 18 Johns. 230. Lewis vs. Burr, 2 Caine's Cas. 196. Turner vs. Mead, 1 Strange 416. 2 Chitty's Plead. 219.  [**13]  Jackson vs. The Union Bank of Maryland, 6 H. & J. 146. If the maker of a note appoint a place for demand, a demand there is sufficient to charge the endorser. Woodbridge vs. Brigham, 12 Mass. 403.
Mayer, in reply. The responsibility of an endorser is stricti juris. The three days of grace is stipulated by way of indulgence--a forbearance to demand or sue until three days have elapsed after the note is due. To insist on a countervailing usage, it must be shown that the party to be affected by it had a direct knowledge of the existence of such usage. The usage is not to be viewed as a change of the contract. The note, and the contract in pursuance thereof, was that the note was to be paid in this state, and not in the District of Columbia, as no place of payment was designated in the note--the residence of both the maker and endorser being in this state. Young vs. Bryan, 6 Wheat. 146. The note being negotiable at the Bank of Columbia, does not necessarily make it payable at that bank; or that it brought home to the endorser knowledge of the special custom of that bank, that demand of payment was not to be made until [**14]  the fourth day after the note became due. The note was not payable at the bank, unless it had been so expressed.
Curia adv. vult.
At this term,
JUDGMENT AFFIRMED, a

a See the following case of The Bank of Columbia vs. Fitzhugh, where the opinion of the court is given at length on the same question as that raised on the fourth point in this case.
There were two other appeals to this court from judgments rendered in Baltimore county court, in actions brought by the Bank of Columbia against Raborg, on other promissory notes, drawn and endorsed, and payment demanded of the maker on the fourth day after each note became due, as stated in the above cause, except that it appeared by the record in one of the cases, that the endorsement of one of the notes sued upon had not been filled up to the plaintiffs, but was left blank. The court affirmed one of the judgments; but that, where in the endorsement of the note did not appear to be filled up, they, for that reason reversed the judgment, and awarded a procedendo. It was, however, suggested at an adjourned meeting of the court of the present term, by the counsel for the appellees, that the endorsement to the appellees of the promissory note alluded to, had been filled up before the trial, and that the clerk had omitted to state that fact in the transcript of the record sent to this court. A certificate to that effect having been produced, the court, on motion of the appellees' counsel, struck out the judgment of reversal and award of procedendo, and ordered a writ of diminution. The counsel for the appellant, then consented that the record in this court might be amended by filling up the blank endorsement of the note; which being done, the judgment was also affirmed.

 [**15]  

18 of 23 DOCUMENTS 

THE BANK OF COLUMBIA vs. FITZHUGH.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

1 H. & G. 239; 1827 Md. LEXIS 16 

June, 1827, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Washington County Court. This was an action of assumpsit brought in the names of the President, Directors and Company, of the Bank of Columbia, (now appellants,) against the appellee, upon a promissory note drawn by Samuel Fitzhugh at George Town, in the District of Columbia, on the 31st of March 1818, for $ 2500, and payable, sixty days after date, to William Fitzhugh, junior, (the appellee,) or order, and by him endorsed to the plaintiffs. The declaration contained but one count on the said note, in which the plaintiffs aver, that at the end of the 60 days, to wit, on the 3d of June 1818, they presented the note to, and demanded payment of, the said Samuel Fitzhugh, &c. The general issue was pleaded.

At the trial the plaintiffs offered in evidence the following promissory note:

"Doll. 2500.     Geo. Town, March 31, 1818.

Sixty days after date I promise to pay William Fitzhugh, junr. or order, twenty-five hundred dollars, value received, negotiable at the Bank of Columbia.

Saml. Fitzhugh."

Endorsed: "Pay to The President, Directors and Company, of the Bank of Columbia.

Wm. Fitzhugh, junr."

The defendant admitted that the endorsement [**2]  on the note was his proper handwriting. The plaintiffs proved, (under a commission,) that payment of the note was demanded of the maker on the 3d of June 1818, who did not pay it, and that a notice to the endorser was on the same day, after the demand and refusal aforesaid, put into the post office at George Town, directed to him at Hager's Town, Maryland, where he resided; and it was admitted that the defendant, at the time he endorsed the said note, and when it became due, and was protested, was not a citizen of George Town, or the District of Columbia, but was at the said times respectively, and still is, a citizen of this state, residing in Washington county. A variety of other testimony was taken under the commission which issued to the District of Columbia, which went to establish, that there had existed at George Town from the year 1793, to the date of the note, a practice among banking corporations, merchants, and dealers in negotiable paper, of demanding payment of unpaid notes and bills, on the fourth day after the time limited for payment, according to the terms of the note or bill had terminated, on which fourth day it was the practice to give notice to the endorsers, of [**3]  the nonpayment thereof. That such practice was generally known, and almost universally prevailed among men of business at George Town; that persons who paid their notes on the fourth day of grace, maintained their credit as punctual men, though some punctual men paid their notes on the third day of grace; that about the 20th of June 1818, a different practice began to prevail, the validity of demanding payment from the maker of a note, on the fourth day of grace to bind the endorser, being then questioned; and some of the banks had payment of notes demanded, and notices to endorsers given, both on the third and fourth days of grace. That prior to that time no bank in George-Town, or in Washington, in the said district, where a similar practice had prevailed, was known to have a different practice, though there were some exceptions in practice from the banks in Baltimore, transmitting notes for collection, giving orders to have such notes protested on the third day of grace. The plaintiffs then prayed the opinion of the court, and their direction to the jury, that if they shall find from the evidence, that from the year 1798, up to the time when the note offered in evidence became due,  [**4]  it was the established usage and practice of the Bank of Columbia, and that it was the usage and practice of all the other banks in Washington county, in the District of Columbia, from the times they respectively went into operation, until and at the time the said note became due; and that it was the universal practice of merchants in the said county, to present negotiable notes, that were due and unpaid, to the drawer, for payment on the fourth day, i. e. the day after the third day of grace; and that such usage and practice was of public notoriety, and familiarly known to all merchants, traders, dealers and customers, in the said county; and, that the negotiable note offered in evidence was presented for payment to the drawer, and notice given to the defendant as endorser thereof, according to the said usage and practice, that then the plaintiffs were entitled to recover. Which opinion and direction, the Court [Buchanan, Ch. J. and Shriver, and T. Buchanan, A. J.] 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:

A drew a note dated at G, and there payable 60 days after date, in favour of B, or order, who endorsed it to the plaintiffs, by whom it was discounted. On the first day, after the third day of grace, payment was demanded of this note of A, who not paying it, notice of its dishonour was sent by post to B, who did not then, nor when he endorsed the note, reside at G. It appeared that it had been the universal practice of banks and merchants at G, for 20 years, to present negotiable notes due and unpaid to the drawer for payment, on the fourth day of grace; that such usage was of public notoriety, and that the demand and notice above mentioned were in conformity thereto--Held, that B's contract was to be considered as made in reference to this usage; that both he and the drawer looked to the place where the money was to be paid, and the contract performed, and must be presumed to have known this usage, and he was, therefore, liable as endorser.

A usage of universal prevalence becomes a part of the existing law, and is to be noticed ex officio by the courts of justice; but a particular usage has a circumscribed and limited application, and must be supported by proof. Where it is well established, it is as obligatory on the objects of its operation as the general law.

Usage enters into contracts, becomes a part of them, and must be regarded in their interpretation.

Special usages control and govern the general law repugnant to them.  

COUNSEL:
F. S. Key, for the Appellants. This case is similar [**5]  to that of Raborg vs. The Bank of Columbia, (ante 231,) and the arguments used there are applicable to this case. The decision of the Supreme Court of the U. S. in Renner vs. Bank of Columbia, 9 Wheat. 582, and Mills vs. The Bank of the United States, 11 Wheat. 431, and of this court in The Bank of Columbia vs. Magruder, 6 Harr. & Johns. 180, have established the lawfulness of the usage in the District of Columbia, of demanding payment of a promissory note on the fourth day after it falls due, in all cases coming within the sphere of its operation. So that the only question remaining is--Does the contract of the parties in this case come within the operation of that usage? It will be contended for the appellants that it does. The question, whether the usage is to prevail or not, is to be decided by ascertaining whether the parties looked to the performance of the contract within the place where the usage prevailed. For this see Robinson vs Bland, 2 Burr. 1078. Ludlow vs Van Rensselear, 1 Johns. Rep. 94. Renner vs Bank of Columbia, 9 Wheat. 588. Chitty on Bills, 273, 271, (ed. of 1817,) 337, 340, (ed. of 1821.) The endorsing a note is like the drawing of a bill by the endorser on the [**6]  maker in favour of endorsee. Chitty, 336, (ed. of 1817.) And where a bill is drawn on a man in another place, the usage of that place is to prevail, and the drawer is bound by such usage. Still more as an accommodation note intended by the parties to be discounted at a particular place, which shows that the parties looked to a performance there. Still more when the note, as here expressed upon its face, that it is "negotiable at the Bank of Columbia." Yeaton vs Bank of Alexandria, 5 Cranch, 49. Mandeville vs Union Bank of George-Town, 9 Cranch, 1. Bank of Columbia vs Okely, 4 Wheat. 243. Again, it will be contended that the note must have been dealt with according to the usage, or the maker could not have been in default, and consequently the endorser could not have been held liable. And, therefore, the endorser's contract was--"Deal with this note so as to put the maker in default, and I will be liable." If this was not his contract, he made no contract to be liable in any way. As to the construction of such contracts, see Chitty on Bills, 118. Compliance with the usage was therefore a necessary part of the contract, and the defendant is presumed to know it. That this knowledge is [**7]  presumed, and that no proof of actual knowledge is necessary, is shown by the following cases: Cutter vs Powell, 6 T. R. 320. Yeaton vs Bank of Alexandria, 5 Cranch, 49. Noble vs Kennoway, 2 Doug. 511. The Bank of Utica vs Smith, 18 Johns. Rep. 230. Chitty, (in note,) 352, 334. Halsey vs Brown, 3 Day, 346. Robson vs Bennett, 2 Taunt. 388. Chitty, 271, 273, (ed. of 1817.) 337, 340, (ed. of 1821.) Jackson vs Union Bank of Maryland, 6 Harr. & Johns. 146. Vallance vs Dewar, 1 Campb. 503, 508. Allegre vs Maryland Insurance Company, 6 Harr. & Johns. 408. In none of which cases was a knowledge of the usage by the party thought necessary to be proved. In the case of Allegre vs Maryland Insurance Company, this court decide that evidence of a usage prevailing in the insurance offices of Baltimore is admissible to explain the contract of a party, neither charged nor proved to have any knowledge of the usage. So that the only difference between this case and those of Renner vs Bank of Columbia, and the Bank of Columbia vs Magruder, is, that there was actual knowledge admitted, and here the same knowledge is necessarily presumed.

Taney, for the Appellee. The drawer of a note is answerable,  [**8]  whether there be a demand or not. The special custom is intended to operate against the endorser. The general rule is, that a note payable 60 days after its date, is due on the 63d day, and expounded as if so written. The usage assumed does not profess to give an interpretation of the note that it is payable on the 64th day. The usage proved is to demand on the fourth day, and to give notice to the endorser on that day. The proof in the cause is that punctual men paid their notes on the third day. The plaintiffs' prayer to the court below did not go to the note, but only to the usage. The note is admitted to have become due on the third day; yet the usage is to demand payment and protest on the fourth It was not put to the jury to say when the note became due. The whole effect of demand and notice is to make the endorser liable. Admit that this case is similar to that of Mills vs Bank of the United States, 11 Wheat. 431, yet this court is not bound by the decision in that case. Some decisions of the supreme court are binding upon this court; but that is not one of those cases. The laws of this state, passed before the grant of jurisdiction over the District of Columbia, to congress,  [**9]  govern in Washington county of that district, except where altered by congress. By that law the endorser of a note is not liable unless certain acts are done; one of which is, that demand of payment from the maker be made on the third day after the note becomes due. This is the general law of the commercial world. Lennox vs Roberts, 2 Wheat. 377. Every person is bound to know the general law; and in the absence of proof of a different law, brought home to him, he is not bound by it. The endorser undertakes conditionally. Although the note is made negotiable at the Bank of Columbia, yet it need not have been negotiated there. It might have been negotiated in this state; and if it had been discounted here, could it be subject to the usage in the District of Columbia? Would the endorser be bound differently if the note was discounted at the Bank of Columbia, than he would be, if discounted at any bank in this state? The legal exposition of the contract is matter of law to be decided by the court, and usage must be proved as part of the law. When a usage becomes general and universal, then it becomes a part of the law. It does not depend upon a usage being ancient or modern. No usage is [**10]  to be noticed unless it becomes a part of the law; and it is to be judicially known when it becomes universal and general. By the law of this state the liability of the endorser is conditional. It is implied by law, that there must be demand of payment from the drawer on the last day of grace, and notice sent to the endorser by the mail on the next day. Lenox vs Roberts, 2 Wheat. 377. Chitty on Bills, 315. The custom in the District of Columbia, as assumed, is a custom affecting the endorser and not the drawer. The depositions of the witnesses state it to be variant. Some of the merchants paid their notes on the third day, and some on the fourth. By the general law the endorser is liable on the third day. Can a custom different from the general law bind an endorser without his consent? It is a custom differing from the law, and dispenses with the law for the benefit of the drawer, and not for the endorser. This note was negotiable at the Bank of Columbia, and it became liable to the short process of that bank, given under the act of 1793, ch. 30, s. 14; of this the endorser is presumed to have knowledge; but not of any new custom. That was the only object of the words "negotiable at [**11]  the Bank of Columbia," inserted in the note. The usages mentioned in the cases cited by the appellants' counsel were not inconsistent with the rule of law. As to notice, &c. see Chitty on Bills, 277, 355, (ed. 1821.) The rule is, that the demand must be made during the hours of business. This is not a usage in opposition to law, but it is consistent with the law. The same rule is as to the fourth of July. The usage in Jackson vs The Union Bank of Maryland, 6 Harr. & Johns. 146, is consistent with law. It is a lawful usage. The decision in The Bank of Columbia vs Magruder, 6 Harr. & Johns. 180, went upon the principle of a waiver. There the endorser being in the District of Columbia, consented that the demand and notice should be on the fourth day. This would bind him independent of a custom; it being his contract in dealing with a bank accustomed to demand payment on the fourth day. Besides, he had knowledge of the usage; and his knowledge and conformity to the usage stands upon contract to be bound by the custom. Knowledge of the custom must be brought home to the endorser, and it then enters into the essence of the contract. If demand of payment is made on the third day, and notice [**12]  by the mail on the fourth day to the endorser, the holder of the note might recover notwithstanding the custom. The usage does not abolish the law. By conforming to the law it will enable the party to recover in opposition to the custom. The usage cannot repeal a law. It is not the lex loci of the District of Columbia; but is a mere matter of contract between the banks, and their customers, in the district. The plaintiffs' prayer to the court below does not put it to the jury, that the plaintiffs could not recover on the note on the third day if it was not then paid. If the principle contended for by the appellants' counsel is to prevail, every petty village in the state may have a custom of its own; and the doctrine upon promissory notes will no longer be fixed and settled.

F. S. Key in reply. It is not contended that the usage subverted the law; but that it enters into the contract, and forms a part of it. How did the three days of grace become a principle of law? By the usage entering into the contract. The person is presumed to have assented to the usage. All dealers in promissory notes are considered as merchants, and are brought within the usage, and are presumed to have [**13]  consented to the three days of grace. In this case the only question is, whether the party knew of the usage, or was in a situation to know it? And it has been shown, it is believed, that he did know it, or was bound to know it. Suppose the note had been negotiated at any other bank, still it must be demanded of the drawer who resided in George Town, or whose agent resided there. It was the contract of the drawer, and it was to be dealt with as such.

Curia adv. vult.  

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

OPINIONBY:
EARLE 

OPINION:

 [*246]  EARLE, J. at this term, delivered the opinion of the court. This is a suit on a promissory note, brought in Washington county court by the appellants against the appellee, who endorsed the same. The note was given on the 31st of March 1818, by Samuel Fitzhugh, of the District of Columbia, to William Fitzhugh junr. of Washington county in this state, for $ 2500, payable to him, or his order, 60 days after date, and negotiable at the Bank of Columbia; and being endorsed to the bank, it was discounted for the accommodation and use of the maker. At the trial of the case the note was offered in evidence [**14]  to the jury, the endorsement of Wm. Fitzhugh junr. on the same being admitted to be of the proper handwriting of the defendant. And it was proved by the plaintiffs, under a commission, that payment of the note was demanded of Samuel Fitzhugh, the drawer, on the third day of June 1818, being the day after the three days of grace, and the same was refused by him, and that notice of nonpayment was given to William 

 [*247]  Fitzhugh junr. by a letter deposited in the post office at George Town, directed to Wm. Fitzhugh junr. Hager's Town Maryland, dated and deposited in the post office on the said third day of June 1818. The plaintiffs further proved under the commission, that it had been the constant and almost undeviating practice and usage of the Bank of Columbia, from its first establishment in 1793, until after this note became due, to demand payment on the day after the three days of grace, and to give notice of nonpayment to the endorsers on the same day; that a similar usage had prevailed for many years in all the banks in Washington and George Town; and that the same was of public notoriety, and universally and familiarly known to all merchants, [**15]  and others, of Washington county, in the District of Columbia, where the said banks were established. And it being admitted that the defendant, at the time he endorsed the note, and also at the time the same became due, was not a citizen of George Town, in the District of Columbia, but that the said defendant was, at the times above mentioned, a citizen of this state, residing in Washington county, the plaintiffs, by their counsel, prayed the opinion and direction of the court to the jury, that if they should find, from the evidence in the cause, that from the year 1798 up to the time the note offered in evidence became due, it was the established practice and usage of the Bank of Columbia; and that it was the usage and practice of all the other banks in Washington county, in the district, from the time they respectively went into operation, until and at the time the said note became due; and that it was the universal practice of merchants in the said county to present negotiable notes that were due and unpaid, to the drawer for payment, on the fourth day, i. e. on the day after the third day of grace; and that such usage and practice was of public notoriety, [**16]  and familiarly known to all merchants, traders, dealers and customers, in the said county; and that the negotiable note offered in evidence was presented for payment to the drawer, and notice given to the defendant, as endorser thereof, according to the said usage and practice, that then the plaintiffs were entitled to recover. The court refused this opinion and direction, and their refusal gave rise to the exception, the matter of which we are now to revise and consider.

 [*248]  This usage of the Bank of Columbia of demanding payment on the fourth day, has been recognized in this court on a former occasion, in the case of the Bank of Columbia vs Magruder, 6 H. & J. 172, as a reasonable and legal usage, the evidence of which should be received, to come at the understanding of parties in their contracts, which are made with reference to the usage. And it was determined, by that case, to be of the essence of the contract, and to constitute a part of it although not expressly incorporated in it, where it was personally known to the party. This decision was given upon the case submitted, which was most streneously urged on the ground of knowledge brought home [**17]  to the defendant; and however strong its expressions are, it was not its object to touch any other subject than the one considered; and it was by no means its view to close the door against the question now raised, which we understand to be, whether, without actual knowledge, the usage is binding on the appellee who endorsed the note to the Bank of Columbia?
A usage of universal prevalence becomes a part of the existing law, and is to be noticed ex officio by the courts of justice; but a particular usage has a circumscribed and limited application, and must be supported by proof. Where it is well established, it is as obligatory on the objects of its operation as the general law. The usage under our notice is of this fixed and established character. It is of great notoriety, and long standing; is recommended by its uniform and unvaried operation; and has the sanction of the judicial tribunals of the country. For years back it has been made to bear on merchants and others dealing with the bank; and the first inquiry is, whether the appellee's acts have brought him within the sphere of its operation? And we are strongly inclined to think they have. The note, made negotiable [**18]  at the bank, was endorsed by him for the accommodation of the maker, and he appears to us as much identified with the negotiation, and to have become as much a dealer at the bank, as if he had endorsed it for value received. His remote situation makes no difference, as the transaction brings him in contact with the institution, and he and the drawer have both to look to the district as the place where the money is to be paid, and the contract to be performed. If for the purposes 

 [*249]  of this decision the appellee is to be viewed in the light of a dealer with the bank, the next and more important inquiry is, is he bound to take notice of the usage, and will the law presume his knowledge of it? The argument is, that he is placed in a situation to know, and is therefore presumed to know. There are usages analogous to this, which have been resorted to in the interpretation of contracts, where it will be found from the authorities, the party has been deemed to be bound without personal or special knowledge. Such, among others, is the case of Noble vs Kennoway, 2 Doug. 511, where the distinguished judge, who pronounced the opinion of the court on the construction [**19]  to be given to a policy of insurance, is represented to say, "every underwriter is presumed to be acquainted with the practice of the trade he insures, and that, whether it is recently established or not. If he does not know it, he ought to inform himself; it is no matter if the usage has only been for a year."
The case of Vallance vs Dewar, 1 Camp. 503, is to the same effect. The action was upon a policy, and in giving it an interpretation, Lord Ellenborough adjudged, that a usage which was notorious must be presumed to be equally within the knowledge of both parties; and if a usage be general though not uniform, the underwriters are bound to take notice of it.
There was a case decided in the supreme court of New-York, in the year 1820, which bears a yet closer analogy to the case we are considering, inasmuch as it relates to the demand of payment of promissory notes. It is the case of the Bank of Utica vs Smith, and is reported in 18 Johns. 230. The note was made payable at the Mechanics' Bank in the city of New-York, and payment was demanded within a quarter of an hour after 3 o'clock, P. M. which is the time for closing the bank [**20]  as to ordinary business. This supposed irregularity was seized on, among others, to defeat the claim, and the defendant bottomed himself on the undeniable general position, that presentments for payment must be made at a bank, where it is the appointed place of payment, during the regular hours of business. To this was opposed the usage of the Mechanics' Bank, whose course of doing business was to allow 15 minutes after banking hours for the presentment and payment of notes. It 

 [*250]  was contended by counsel, that the usage was not sufficiently shown, that it ought to be proved and brought home to the knowledge of the defendant; but it was notwithstanding decided by the court, that the bill was properly presented at the bank for payment, and although it was near a quarter of an hour after the usual time for closing the bank as to other business, it was yet within bank hours, the 15 minutes being the accustomed time for such presentments, and of the course of business at the bank, the defendant being the endorser, ought to have informed himself. His admitted residence was at Peterborough, Madison county, in the state of New-York.
But it was earnestly pressed upon [**21]  us, on the argument, that the usage of the Bank of Columbia is entirely unlike the usages which were decided on in the cases above mentioned, because it is directly repugnant to the general law of the district. By that law, which is the law of this state, demand is made on the third day of grace, and not on the day after the third day. We have to confess we cannot perceive that this argument has much force in it. We have already determined, that the contract with the bank, is not made with a reference to the existing law, where the party has a personal acquaintance with the custom; and we think it will be no great stretch of the adjudication to say, that the contract is not made in reference to the general rule, where the particular rule is presumed to be in the knowledge of the party; if in the first case, so in the last, the usage enters into the contract, and becomes a part of it, and must be regarded in the interpretation of it. Direct authorities, however, are to be found, where the particular custom has been determined to prevail over the existing law, although in terms opposed and repugnant to it. The case of Cutler vs Powell, 6 Term. R. 320, is of this [**22]  description. The suit was upon a promissory note given to the mate of a ship for a certain sum of money, provided he proceeded on his voyage, and continued to do duty to the port of destination. He died on the voyage, and agreeable to the principles of the common law, it was clear that nothing was due on the note, as he did not continue to do duty to the port of destination. An inquiry, nevertheless, into the usage in such cases, was directed to be made by the court, and all the judges expressed a willingness to sanction an allowance 

 [*251]  for the time the service was performed, if the usage would warrant it.
A case still more to the purpose on this point was decided in the year 1809, in the supreme court of errors in the state of Connecticut, Halsey vs Brown, 3 Day 346, where assumpsit was brought against the owners of a brig for certain gold and silver coins shipped on board, to be transported and delivered to a mercantile house in New-London, for which a bill of lading was given by the master in the usual form. On the trial of the general issue, the ship owners, to repel their liability, gave evidence of a usage or custom that the freight of money [**23]  received by the master of a vessel was his perquisite; that he was to be compensated for the transportation of it, and not the owners of the vessel, and that the contract was considered as being personal, and of individual obligation, but not as the contract of the owners. This evidence was objected to, but suffered by the court to go to the jury, and the defendants obtained a verdict; on a motion for a new trial it was forcibly argued, that the law rendering the owners liable for goods received by the master to be transported, was the settled law of the state; that the contract of the master was the contract of the owners; his nondelivery was their nondelivery; and that the maxim respondeant superiores well applied.
The court stated the true question to be, whether evidence of a particular custom or usage could be given in evidence to control the general law; they admitted, that by the general law owners of vessels were answerable for the contracts of their masters; but they said it may be controlled by a special local usage, so far as that usage extended, which would operate on contracts made in view of or with reference to it; and they refused a new trial. It is believed many [**24]  other cases might be produced where special usages have been decided to control and govern the general law repugnant to them; but the court are fully satisfied on the point, and deem it unnecessary to multiply references to authorities.
It is their opinion, that the defendant is placed in a situation to be acquainted with the above usage of the Bank of Columbia, and must be presumed to know it; and that his contract is to be considered to have been made in reference to the 

 [*252]  usage, and not to the general law, which confines the demand of payment to the third day.
JUDGMENT REVERSED, AND PROCEDENDO AWARDED.  

19 of 23 DOCUMENTS 

CATHELL vs. GOODWIN.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

1 H. & G. 468; 1827 Md. LEXIS 29 

June, 1827, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court. Action of assumpsit for money lent and advanced, paid, laid out and expended, and an insimul computassent. The defendant, (now appellee,) pleaded non assumpsit, and issue was joined. At the trial the plaintiff, (the appellant,) offered in evidence the following bill of exchange. "Mr. Jno. Gooding. Pay to the order of Mrs. Matilda Cathell five hundred dollars, and charge the same to your ob. st.

Robt. M. Goodwin.

$ 500. June 24th, 1818."

And proved it to be in the handwriting of the defendant, and payable to the plaintiff's wife. And further proved that the said bill was presented to the witness, the drawee of the bill, by Mrs. Matilda Cathell, at which time he refused to pay the bill; and at that time, and at the time the bill was drawn, the drawee had not in his possession any funds belonging to the defendant. And the said witness, the drawee, further proved, that at the time the bill was presented to him for payment, he told Mrs. Cathell, that if funds should afterwards come into his possession, which he shortly expected, he would pay said bill, and that Mrs. Cathell left the witness without reply. That funds did afterwards come [**2]  into the witness' hands, but the bill was not again presented to him for payment, and that if it had been, he would have paid it. And further proved that the defendant, when he drew the bill, was indebted to the witness, the drawee, but that notwithstanding he would have paid the draft when funds came into his hands; and that the said funds were all disposed of for account of the drawer of the said bill. Upon which the defendant prayed the court to instruct the jury, that the plaintiff was not entitled to recover. Which instruction the Court, [Hanson and Ward, A. J.] gave to the jury. The plaintiff excepted. Verdict and judgment for the defendant, and the plaintiff appealed to this court.  

DISPOSITION:
JUDGMENT REVERSED, AND PROCEDENDO AWARDED.  

HEADNOTES:

The drawer of a dishonoured bill, who neither at the time he drew it, nor when it was presented, had any funds in the hands of the drawee, nor such expectation of its payment as would induce a merchant of common prudence and ordinary regard for his commercial credit to draw a like bill, is not entitled to notice of such dishonour.

Where the defendant drew a bill in favour of the plaintiff's wife, and thus authorised her, in express terms, to receive its amount--the bill being presented by her, and payment refused, in an action on the bill by the husband, the defendant cannot deny the wife's right to demand its payment.

Whether or not the drawer of a bill had reasonable grounds to expect that his bill would be honoured, and the facts upon which that question arises are admitted or undeniable, it is exclusively a matter of law to be pronounced by the court; but if the facts be controverted, or the proof be equivocal, or contradictory, then it becomes a mixed question, both of law and fact, in which case, the court hypothetically instruct the jury as to the law, to be by them pronounced accordingly as they may find the facts.

Under the money counts the plaintiff may recover, by evidence of the defendant's dishonoured bill, drawn payable to the order of the plaintiff's wife--the drawer, under the circumstances of this case, not being entitled to notice of the nonpayment of his draft.  

COUNSEL:
R. Johnson and Gill, for the Appellant, contended, that under the circumstances stated in the bill of exceptions, no notice of the refusal of the drawee of the bill to pay it, could be required by the drawer. They referred to Eichelberger vs Finley & Van Lear, 7 Harr. & Johns. 381. 2 Phill. Evid. 10, 21.

Meredith and R. B. Magruder, for the Appellee, cited Eichelberger vs Finley & Van Lear, 7 Harr. & Johns. 381. Chitty on Bills, 268. Bailey [**3]  on Bills, 239, 240, 241. Rucker vs Hiller, 3 Campb. 217. S. C. 16 East, 43. Robins vs Gibson, 3 Campb. 334. Blackhan vs Doren, 2 Campb. 503. Clopper vs Union Bank of Maryland, 7 Harr. & Johns. 92.

Curia adv. vult.  

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

OPINIONBY:
DORSEY 

OPINION:

 [*469]  DORSEY, J. at this term delivered the opinion of the court. To support the opinion of the court below, the appellee's counsel have relied on three positions, (either of which, if tenable, would be sufficient for their purpose,) viz. 1. That Mrs. Matilda Cathell was not competent to demand payment of the bill. 2. That she consented to receive a conditional acceptance, and thereby gave time to the acceptor. 3. That the drawer had reasonable grounds to expect that his bill would have been honoured.

 [*470]  There is nothing to sustain the first position. The defendant has in express terms authorised Mrs. Cathell to receive the amount of the bill. To deny her the right to demand it, would be sanctioning an absurdity for the mere purpose of working injustice.
The second position is equally untenable. The facts stated in the bill of exceptions [**4]  would not have warranted the jury in finding Mrs. Cathell's acceptation of a conditional acceptance of the bill, much less are they of that conclusive, resistless character which would authorise the court to assume the fact, to the ascertainment of which a jury only were competent.
The third position was that most obstinately contended for, which was conceived to be impregnably fortified by that part of the rule established in Eichelberger vs Finley & Van Lear, 7 H. & J. 381, which dispenses with notice only where the drawer had no reasonable grounds to expect that his bill would be honoured. The reasonableness of such expectation is matter for the court, and not for the jury, to decide. If the facts, upon which the question arises, be admitted or be undeniable, then the question becomes exclusively a matter of law to be pronounced by the court; but if the facts be controverted, or the proof be equivocal or contradictory, then it becomes a mixed question both of law and fact, in which case, the court hypothetically instruct the jury as to the law, to be by them pronounced accordingly as they may find the facts. What are the facts to be found in this case [**5]  justifying the drawer's expectation that his draft would have been paid? So far from having funds in the drawer's hands, he was his debtor--no proof of such a commercial intercourse between them as would imply a mutual credit--no previous promise by the drawee to accept this or any other draft for the drawer's accommodation--no consignment of goods to the drawee, which the drawer had any reason to expect would be received in time to meet his bill, but the only proof is, that the drawee informed the payee, that he expected funds of the drawer would shortly come to his hands, with which, when received, he would pay. That funds afterwards did arrive, but whether in one month, or five years after, does not appear. What may have been the expectations of the drawee, as to the receipt of funds from the drawer, is immaterial; 

 [*471]  they are not even admissible evidence in this cause. But if they were, they can have no influence on those of the drawer--into whose expectations only is the enquiry to be made. The facts in the cases of Legge vs Thorpe, 12 East 170, and Claridge vs Dalton, 4 Maule & S. 226, afford much stronger evidence of a reasonable expectation in [**6]  the drawers that their bills would be honoured, than those in the present case; yet there they were adjudged insufficient. The "reasonable grounds" required by law are not such as would excite an idle hope, a wild expectation, or a remote probability, that the bill might be honoured, but such as create a full expectation, a strong probability of its payment; such indeed as would induce a merchant of common prudence and ordinary regard for his commercial credit, to draw a like bill. The facts in this case constitute no such reasonable grounds. We therefore think that the county court erred in instructing the jury that the plaintiff was not entitled to recover, and consequently reverse their judgment.
JUDGMENT REVERSED, AND PROCEDENDO AWARDED.  

20 of 23 DOCUMENTS 

TAYLOR & M'NEAL vs. PHELPS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

1 H. & G. 492; 1827 Md. LEXIS 34 

June, 1827, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court. This was an action of assumpsit, brought by the appellants against James Montandevert, and Henry Phelps, surviving partners of Jonathan O. Walker, deceased. Upon the writ which issued, Montandevert was not arrested. The declaration contained two counts--one for money had and received, and the other on an insimul computassent. The defendant, (now appellee,) pleaded non assumpsit, and issue was joined.

At the trial the plaintiffs offered in evidence an account rendered to them by the defendant, and his said partners, (Montandevert, Walker, & Co.) of sales of herrings, received at Port-au-Prince, by the latter from the former, made in January and February 1820, amounting to $ 933 67; and the amount of charges $ 473 96, being deducted, left due to the plaintiffs the sum of $ 459 71; which account was admitted to be in the handwriting of the defendant, and by him delivered to the plaintiffs. The defendant then offered in evidence the commission which issued in this cause to Port-au-Prince, on the 10th of April 1823, for the purpose of taking testimony, and documents and translations. The commissioners, by their return to the commission, stated that [**2]  they had taken the deposition of J. Mullery, who, to the defendant's second interrogatory--"Are you, or are you not, acquainted with the laws of that part of Saint-Domingo in which Port-au-Prince is situate? If yea, state what is the law relative to attachments. And can or cannot the creditors of one man attach the funds of his creditor in the hands of a third person; and can he or can he not compel such third person to pay him the amount in such third person's hands belonging to such debtor?" Answered in the affirmative. To the defendant's third interrogatory--"If there be such a law, as before referred to, is it written law, or the common law of the country? If it be written law, annex a copy of the same, examined and compared by you with the original, to your answer hereto." He answered "it is a written law of which the annexed is a true copy. "To the defendant's fourth interrogatory--"Did or did not a certain Frederick Kramer, or some other person, lay an attachment on the funds of Taylor and M'Neal, in the hands of Montandevert, Walker, & Co. of Port-au-Prince? If yea, when was it done; and did the said Kramer get a judgment against said Montandevert, Walker, & Co. and for what [**3]  amount; and was the same paid by them to him? He answered in the affirmative; and says, "the attachment was laid in January or February 1820, and judgment was obtained against whatever funds there might be in the hands of Montandevert, Walker, & Co. belonging to Taylor and M'Neal, not exceeding $ 797 50." To the defendant's fifth interrogatory--"Annex a copy of the proceedings compared by yourself with the original record in the attachment so laid in the hands of said Montandevert, Walker, & Co." He answered "the annexed is a just and true copy of the original proceedings in this case, copied and compared by himself, from the original records." The deponent further stated "that attachments are served by the sheriff who keeps no copy of them, nor are they registered in any other office. That in this case he knows of the attachment being duly and legally laid by the said F. A. Kramer, on the property of Taylor and M'Neal, in the hand of the said Montandevert, Walker, & Co. and that in consequence thereof, and of the judgment subsequently obtained against the said Taylor and M'Neal, the amount of funds belonging to them in the hands of Montandevert, Walker, & Co. was paid over, or placed [**4]  to the credit of the said Kramer, by Montandevert, Walker, & Co." Then follows--[Seal.] "Extract from the records deposited at the office of the Civil Court, sitting at Port-au-Prince. We the subscribers, appointed arbitrators by Messrs. Montandevert, Walker, & Co. on one part, and Mr. F. A. Kramer on the other, in order to decide upon the differences existing between the said Messrs. Montandevert, Walker, & Co. and F. A. Kramer, concerning various debts due by Messrs. Dennis and Brown, of Miragoane, after having heard the two parties, and after having attentively examined the several documents relating to the business in contestation, are of opinion that the advance of the sum of seven hundred and ninety-seven dollars and fifty cents, made in the month of February last, to said Mr. F. A. Kramer, by Messrs. Montandevert, Walker, & Co. was not made to him but under his personal responsibility; and that the papers, establishing the debts of said Messrs. Dennis and Brown, were not deposited in the hands of Messrs. Montandevert, Walker, & Co. but to be used as collateral security; or further, that the payment of the sums due by Messrs. Dennis and Brown, has not yet been made. We have [**5]  adjudged, and do adjudge Mr. F. A. Kramer, to repay Messrs. Montandevert, Walker, & Co. in the space of four months from this date, the said sum of seven hundred and ninety-seven dollars and fifty cents. And in case it should be his intention to leave this Island before the expiration of the said term, he shall be held to furnish a good and solvent security that the present award shall be executed in all its force; on the other hand, Messrs. Montandevert, Walker, & Co. are held, on their part, to render every assistance in their quality of merchants, consignees, and patented, to facilitate the recovery of the debts due by Dennis and Brown. Port-au-Prince, Haiti, 7th September 1819. (Signed,) Robert Golder,

James Booth.

Examined.--True copy.--Detre Leon, clerk.

"Code of civil proceedings. Title VII, of attachments or oppositions, article 557. Every creditor can, in virtue of titles which are of public authenticity or private, attach in the hands of a third person the sums or effects belonging to his debtor, or make opposition to their delivery. 558. If there are no titles, the judge of the debtor's residence, and even the judge of the place of residence of the third person,  [**6]  can, upon petition, permit the attachment or opposition.

"Extract from the minutes deposited at the registry of the civil tribunal sitting at Port-au-Prince. To the Dean and Judges of the Civil Tribunal sitting in this city, begs humbly Messrs. Montandevert, Walker, foreign merchants, established in this city, patented under No. 39, whose domicil is chosen in the study of the undersigned defender. See annexed an under date the 7th of the present month, by Messrs. Robert Golder and James Booth, merchants, residing in this city, requires that it please you to be willing to order by an ordinance put at the end of the present, that it will be authorised, and that it will issue in its full and entire effect--You will do well. Port-au-Prince, the 24th September, 1819.

Signed,     Mallery, Def.

"Seeing the above demand in the name of Mr. Montandevert Walker, a foreign merchant, established in this city, patented under No. 39, asking the execution or confirmation of a sentence awarded, which has been presented to us this day--We, Henry Amedee Gayot, Dean of the Civil Tribunal sitting in this city, order that the judgment awarded, made by the consent of the parties, between [**7]  Mr. Montandevert Walker and Mr. F. A. Kramer, by the arbitrators, Robert Golder and James Booth, shall be deposited at the registry of the court, and purely and simply shall issue to have its full and entire effect, in virtue of article one thousand and twenty of the code of civil proceedings. Given by us, Dean of the Civil Tribunal, Port-au-Prince, the 25th September 1819, the 16th year of Independence.

(Signed)     Gayot.

"Extract from the registers of the registry of the civil tribunal sitting at Port-au-Prince. In the name of the Republic. The civil tribunal sitting at Port-au-Prince, competently united at the palace of justice, have rendered the following judgment: The tribunal, on the petition of Mr. Walker, present, assisted by Mr. Mallery, public defender, granted the act to the said Walker, a foreign merchant, patented in this city, by the consent of Mr. F. A. Kramer, a foreigner, also present by summons, at the request of Messrs. Montandevert, Walker & Co. asking the execution of the awarded judgment of the 7th of September last, with the constraint of the body, which the said Kramer has required of the judges--as far as Messrs. Montandevert, Walker & Co. foreign [**8]  merchants, patented in this city, were authorised to pay themselves the amount of the condemnation pronounced by the awarded judgment of the 7th September of the last year, duly confirmed the 25th of the same month, out of the funds which they have in their hands belonging to Messrs. Taylor & M'Neal, for which the sum carried to the awarded judgment aforesaid has been borrowed. Given by us, F. Abeille, Judge, discharging the duties of Dean, Neptune and Perpignand, Judges at the Hall of Justice in ordinary audiance, on the 29th February 1820, the 17th year of Independence--We command, &c. In faith of which the present has been signed by the Judge Abeille, and the register.

(Signed)

F's. Abeille.

Armand, Register.

Compared--for copy examined.

Detre Leon, Register."

Sworn to be true and correct translations by Thomas W. Griffith. The execution of the commission was admitted, and all errors in the pleadings were waived by consent of the parties. The defendant then prayed the court to instruct the jury, that the plaintiffs were not entitled to recover. Which instruction the Court, [Archer, Ch. J. and Hanson, A. J.] gave to the jury. The plaintiffs excepted;  [**9]  and the verdict and judgment being against them, they appealed to this court.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

Where a debt has been recovered by attachment in a foreign court, the recovery is a protection to the debtor, as garnishee, against his original creditor.

In the absence of any proof of fraud or collusion, the presumption is, that what is done under a foreign attachment, is rightly done, and that the claim of the attaching creditor is established to the satisfaction, at least of the court, in which the judgment of condemnation is obtained.

Foreign judgments are not conclusive when sought to be enforced by suits being brought upon them, they are then but prima facie evidence--may be impeached for irregularity, and rebutted by evidence.

The judgments of foreign courts of competent jurisdiction, when they come incidentally in question, as where they are relied upon by garnishees as a protection against the claims of their former creditors, have the force and effect of domestic judgments, and are conclusive. 

COUNSEL:
Gill, for the Appellants, contended, 1. That the instruction of the court below was wrong, because the proceedings of the court at Port-au-Prince, set forth in the commission, established that no final judgment had been there rendered; that judgment was manifestly unfit to be adopted as final and conclusive. It did not contain a condemnation of Taylor and M'Neal's funds. It was a mere authority to M, Walker, & Co. to pay themselves a debt due from Kramer, out of Taylor and M'Neal's funds in their hands, as far as they (M. W. & Co.) were authorised; and how far they were authorised does not appear. The proceedings leaving the question of authority open, finally settled nothing; short of a final sentence of condemnation the proceedings on attachment were no bar.

2. The defence relied on arose from testimony offered by the defendant, he had therefore no right to assume its truth, and require of the court below, an absolute instruction to the jury, that the plaintiffs were not entitled to recover. Where the plaintiff or defendant requires an instruction from the court, on the testimony [**10]  of the opposite party, it is like a demurrer to evidence, and admits the truth of the facts offered in proof, and reasonable inferences from them; in such case the instruction may be positive and conclusive, because, as the court have the facts admitted, the intervention of a jury is unnecessary; but where either prays an instruction on his own proof, the instruction, if granted, should be hypothetical, as if the jury believe the testimony; otherwise either party may at pleasure take the question of how far the testimony is true or false, from the jury. They are the exclusive judges of the credibility of the evidence. The theory of our system has been invaded by this instruction; and a question of great importance in every case, was determined in this cause by the wrong tribunal.

3. There was evidence of collusion between the defendants and Kramer, from the benefit of which the court below debarred the plaintiffs by the positive and conclusive instruction given to the jury. The facts established a claim for the plaintiffs; the collusion affects the defence relied on. The sum due from Kramer to M, Walker, & Co. was borrowed on the "personal responsibility" of the former. This appears [**11]  from the award in the commission. In the proceedings between M, W, & Co. and Kramer, (the former seeking execution of their award against the latter,) this same debt is said to be borrowed by Kramer for Taylor and M'Neal. There is not the slightest evidence to show that if Kramer did in fact borrow any sum for Taylor and M'Neal, that he disbursed it for their account. It does not appear that Kramer was the creditor of Taylor and M'Neal; the contrary results from the statement, that he borrowed money for them. It is unaccountable, but on the idea of collusion, that M, W, & Co. in endeavouring to enforce an award against Kramer, should suddenly by a new direction given to the proceedings, obtain judgment against Taylor and M'Neal, they not being indebted to Kramer. That Kramer was unable to pay, was manifest from all the documents; and this shows the reason of the combination. The evidence sufficiently raises the question of fraud; and it should have been left to the jury. Proceedings in a foreign attachment, though a good bar, must like all other matters be liable to impeachment for fraud.

4. Foreign laws are to be compared with the original, and sworn to be a true copy. 2 Esp.  [**12]  Dig. 439. Here there is no proof that the witness compared the copy. The answer of the witness to the fifth interrogatory is objected to, so far as the witness speaks of a judgment rendered. Foreign judgments are not conclusive. They may be examined into. Barney vs Patterson's Lessee, 6 Harr. & Johns. 202, 203. Pawling vs Bird's Ex'rs. 13 Johns. Rep. 206. It must be established that the court had jurisdiction over the case. Where the party to be affected by the proceedings is not present, the judgment is not conclusive, nor is it evidence for any purpose. Buchanan vs Rucker, 9 East, 191, 192. Owings & Cheston vs Nicholson & Williams, 4 Harr. & Johns. 103, argument of Mr. Pinkney. The act of 1813, ch. 164.

Meredith, for the Appellee. The rule is well established, that where funds are attached for the debt of a person to whom the funds belong, the judgment is a bar. A person having the property of another, and pays it over by compulsion, is exonerated. Le Chevalier vs Lynch, 1 Doug. 170. Allen vs Dundds, 3 T. R. 125. Hunter vs Potts, 4 T. R. 187. Sill vs Worswick, 1 H. Blk. 669, 671. 683. Philips vs Hunter, 2 H. Blk. 408, 410. M'Daniel vs Hughes, 3 East, 367. Embree vs Hanna, 5 [**13]  Johns. Rep. 101. Holmes vs Remsen, 4 Johns. Ch. Rep. 407. S. C. 20 Johns. Rep. 268. It is admitted that the judgment given in evidence in this case is properly authenticated. But it has been said that the judgment is examinable for irregularity. It is well settled, that if a foreign judgment comes collaterally as a defence in the cause, it is conclusive and unexaminable. Cas. temp. Hardw. 83. Burrows vs Jemino, 2 Stra. 733. Roach vs Garvan, 1. Ves. 159. Tarleton vs Tarleton, 4 Maule & Selw. 20. Hamilton vs Moore, 3 Dall. Rep. 372, 373, (note.) Smith vs Lewis, 3 Johns. Rep. 168, 169. Grant vs M'Lachlin, 4 Johns. Rep. 34. Barney vs Patterson's Lessee, 6 Harr. & Johns. 203. Embree vs Hanna, 5 Johns. Rep. 101. Holmes vs Remsen, 4 Johns. Ch. Rep. 467. There is no difference between a judgment in attachment, from a judgment in any other case. It may be inquired, 1. Was the court at Port-au-Prince a court of competent jurisdiction? 2. Does it judicially condemn the debt, which is the subject of the present action? 3. Is there any evidence of fraud or collusion as between the defendant and the attaching creditor?

1. The law of the place was produced in evidence; and if it was duly approved,  [**14]  it did authorise the proceeding by attachment. It cannot be doubted, but that Kramer was a creditor of the present appellants. Is the law properly proved? This may be done in one of two ways. It may be by an authenticated, or by a sworn copy. The witness does not say expressly that he examined the law; but it is to be presumed from the interrogatory propounded, and his answer thereto, that it was a sworn copy. It cannot be doubted but that it is a sworn copy. If the law is out of the case, there is still sufficient prima facie evidence from the record, to show that the court had jurisdiction. A want of jurisdiction must be shown by him who contests it. Molony vs Gibbons, 2 Campb. 502. Shumway vs Tilghman, 4 Cowen's Rep. 292. This court will intend that the court of Port-au-Prince had jurisdiction over the subject matter, unless it is shown to be otherwise.

2. What does the judgment condemn? Although the record has been incorrectly translated, yet shows that Kramer was indebted to the defendant's house in $ 797 50, for money borrowed for the appellants on Kramer's own responsibility, with a collateral security of debts due to Dennis and Brown. Proceedings were had to enforce payment [**15]  of Kramer. A reference was made to arbitrators, who awarded that Kramer should pay to the defendant's house a sum of money. The award was not complied with, and an execution was awarded against Kramer. Kramer then petitioned the court to authorise this debt to be deducted out of the funds in the hands of the defendant's house, belonging to the appellants; and this the court directed to be done.

3. No fraud appears in the transaction. Need not show a debt due to the plaintiff in the attachment. M'Daniel vs Hughes, 3 East, 367. Under our act of 1715, ch. 40, a person having funds in his hands belonging to his debtor, may attach the amount in his own hands to pay his own debt. The case at bar is not stronger, nor so strong, of a case of inferred fraud than our own laws sanction.

Moale, in reply. A judgment on a foreign attachment is only prima facie evidence of a debt, when it is to be enforced in this country. But it has been said, that when brought in incidentally it is then conclusive. The plaintiffs were never residents in Port-au-Prince, and had no notice of the proceedings, now attempted to be set up in bar of their action. There is no difference when a foreign judgment [**16]  is offered as a set-off, and when it is to be enforced. This court did not, in Barney vs Patterson's Lessee, 6 Harr. & Johns. 202, say, that a foreign judgment was conclusive when offered by way of set-off. There the judgment was offered in evidence as a link in the chain of the plaintiff's title. There can be no difference between a foreign judgment to be enforced, and where offered by way of set-off. Owings & Cheston vs Nicholson & Williams, 4 Harr. & Johns. 66, where all the parties were before the foreign tribunal, and yet this court decided that the judgment was not conclusive. In all the cases relied on by the counsel for the appellee, the parties affected by the foreign judgment were, or had been resident of the country in which such judgments were rendered, To make a foreign judgment on attachment, evidence for any purpose, it must appear that the defendant had been a resident or had been summoned. Fisher vs Lane, 3 Wils. 297. The record offered in evidence in this case does not show that the plaintiffs ever had been summoned, or had notice, or ever were under the jurisdiction of the court. Nor does it appear that any debt had been proved against them. Buchanan vs Rucker, 9 [**17]  East, 194. Borden vs Fitch, 15 Johns. Rep. 121, 142, 143. To bind a person by a judgment he must be a party to the proceeding. There is nothing to show in this case that any proceeding was had by Kramer against the plaintiffs, so as to attach the funds of theirs in the hands of the defendant. Nor is there any thing to show that there was any process of attachment against the plaintiffs. The statute law of a foreign country must be proved by a copy, either properly authenticated, or sworn to be true. But the common law may be proved by parol evidence. Here there has been no legal proof of any law.  

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

OPINIONBY:
BUCHANAN 

OPINION:

 [*501]  BUCHANAN, Ch. J. delivered the opinion of the Court. The facts of this case, as set out in the bill of exceptions taken at the trial, are in substance these: F. A. Kramer, upon his own responsibility, borrowed on account of the appellants $ 797 50, from Montandevert, Walker & Co. merchants at Port-au-Prince, who sued and obtained judgment against him for the amount so borrowed. To discharge himself from which, he sued out an attachment against the funds of [**18]  the appellants, in the hands of Montandevert, Walker & Co. consisting of a balance of the proceeds of a shipment of herrings, amounting to $ 459 71, which he recovered by a judgment of condemnation 

 [*502]  in the civil tribunal sitting at that place. For the amount so recovered, this suit was brought against the appellee, as surviving partner of the house of Montandevert, Walker & Co. and that recovery is relied upon as a full defence to the action.
No principle is now better established, than that where a debt has been recovered by attachment in a foreign court, the recovery is a protection to the debtor, as garnishee, against his original creditor. Chevalier vs Lynch, 1 Doug. 170. Philips vs Hunter, 2 H. Blk. Rep. 402. Holmes vs Remsen, 4 Johns. Ch. 460. S. C. 20 Johns. 229. Embree & Collins vs Hanna, 5 Johns. 101, are in point, with many others, proceeding upon the same principle, to which it is unnecessary to refer; and nothing could be more unreasonable and unjust, than that a person, who has been coerced by the sentence of a court of competent jurisdiction to pay a debt once, should be compelled [**19]  to pay it a second time. It would be any thing but right and proper, and therefore not sanctioned in law. It may indeed be said to be hard, that a creditor should lose his money, without having had an opportunity afforded him of being heard, and perhaps in such cases, injustice is frequently done.
These attachments, however, are resorted to by such as claim to be creditors of those whose funds are sought to be affected; and when in truth they are creditors, no injury is in fact done to those whose debts are attached, being only an application of their funds in that form to the payment of their debts, to which they might be coerced by the attaching creditors in a different form. It is but the turning over one debt in discharge of another. And in the absence of any proof of fraud or collusion, the presumption is, that what is done is rightly done, and that the claim of the attaching creditor is established to the satisfaction at least of the court, in which the judgment of condemnation is obtained. Injustice may, and is sometimes, but not always done, in that ex parte form of proceeding; but in the case of a debtor, it would be extremelv hard, that after having been made to pay [**20]  the debt, by the authority of a court which he could not resist, he should be compelled to pay it over again; and in every such case, where he was not himself tainted with fraud, &c. injustice would be done. And it is not for us to complain of the effects of foreign judgments in attachment on the 

 [*503]  rights of creditors here; our own attachment law has the same operation upon the rights of nonresident creditors.
The cases relied upon by the counsel for the appellants, to show that foreign judgments are not conclusive, are chiefly cases in which they were sought to be enforced by suits being brought upon them; and in such cases they certainly are not conclusive. The distinction is between the effect of a foreign judgment, when it is sought to be enforced by the party claiming the benefit of it, by bringing suit upon it, and when it only comes incidentally in question. In the former case it is not conclusive, but prima facie evidence only, and may be impeached for irregularity, and rebutted by other evidence. But in the latter, if it be by a court of competent jurisdiction, it has the force and effect of a domestic judgment, and the correctness of it cannot be examined into,  [**21]  but it is conclusive. This distinction was fully recognized and adopted in Barney vs Patterson, 6 H. & J. 182.
In this case the judgment of the civil tribunal at Port-au-Prince, does come incidentally in question, and is only introduced and relied upon by the appellee as a protection against the claim of the appellants, his former creditors, who are seeking to compel him to pay over again a debt, which under process of attachment he has once already been obliged to pay.
The jurisdiction of the civil tribunal at Port-au-Prince is not impeached, and however the fact may have been, there is no evidence in the record of any fraud or collusion having been practised. As far as appears to us, and we cannot look beyond the record, it was the common case of a creditor, attaching the funds of his absent debtor in the hands of a third person, and that is what is done every day in our own courts. And it would be thought very strange, and hard too, by a citizen of this state, if, after being obliged by a judgment in attachment in one of our courts to pay the amount of a debt due from him to a citizen of Virginia, he should on going into that state, be subject to be [**22]  sued by his original creditor there, and made to pay the same debt over again; and that is exactly what it is sought to make the appellee do in this case, but which the law will not sanction.
JUDGMENT AFFIRMED.  

21 of 23 DOCUMENTS 

SEEKAMP'S Adm'r. vs. HAMMER, et ux.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

2 H. & G. 9; 1827 Md. LEXIS 37 

June, 1827, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from the Orphans Court of Baltimore county. The only question in the case was, whether or not, in the distribution of the personal estate of a deceased intestate, under the act of 1798, ch. 101, among brothers and sisters, the half blood were entitled to share with the whole blood; or that the same was to be distributed among the whole blood, to the exclusion of the half blood? It appears by the petition filed by G. Hammer, and Caroline his wife, (the appellees,) against Frederick L. E. Amelung, administrator of Albertine C. Seekamp, (the appellant,) and the answer of the said Amelung, that Sophia, the mother of the said Caroline, was formerly married to a certain Volkman; that she had two children by the said marriage, viz. Caroline, one of the petitioners, and Amelia, her sister, both of whom are yet living; that the said Sophia afterwards intermarried with a certain Albert Seekamp, of which marriage the only issue were Albert and Albertine C. Seekamp; that Albert, the younger, is still living, and Albertine C. his sister, is now deceased; that after the death of Albert, the elder, the said Sophia intermarried with Frederick L. E. Amelung, out of which marriage two children [**2]  have been born, both of whom are yet living, and were born before the death of the said Albertine C. Seekamp; that on the death of Albert Seekamp, the elder, the said Albert, his son, and Albertine C. his daughter, succeeded to a large personal property from their said father; that on the 16th of March 1824, the said Albertine C. Seekamp departed this life intestate, and a minor, under the age of sixteen years, and that administration was granted upon her estate to the said Frederick L. E. Amelung; and, by virtue of such administration, the said Frederick L. E. Amelung became possessed of a large personal estate, as appears by his administration account rendered to the orphans court; that after the payment and allowance for debts, and other expenses incident to the administration, there is now in his possession, as administrator aforesaid, a large personal property ready for distribution; that the time allowed by law for making such distribution has elapsed; and the question presented to the orphans court was, who were entitled to this personal estate of the said Albertine C. Seekamp, deceased?

The Orphans Court, [M'Kim, Randall and Moore, J.] were of opinion, that, before the [**3]  passage of the act of 1798, ch. 101, by the general assembly of this state, a brother or sister of the half blood were equally entitled with a brother or sister of the whole blood, of the personal estate of a deceased brother or sister dying intestate; and the court did not see any thing in that statute, to induce them to believe that the legislature intended to alter this law; and that if the legislature intended to exclude the half blood from participating equally with the whole blood, of the personal estate of a deceased brother or sister dying intestate, that it would have done it in plain and express language, which is not to be found in the act of 1798; on the contrary the court think that the ninth section of sub chap. 11, of that act, intended to place them upon the same footing, and to give them the same rights in this respect; and the court were of the opinion, that this section intended and did provide for a brother or sister of the half blood, as well as for a brother or sister of the whole blood--Decreed, that Frederick L. E. Amelung, administrator of Albertine C. Seekamp, deceased, make distribution of the personal estate of the said deceased, according to this decree,  [**4]  and that he pay and deliver over to the said Gottfried Hammer, and Caroline his wife, one-sixth part of the personal estate of the said Albertine C. Seekamp, deceased.

From this decree the respondent appealed to this court.  

DISPOSITION:
DECREE AFFIRMED.  

HEADNOTES:

In the distribution of the personal estate of an intestate, who died leaving a mother, a brother of the whole blood, and four brothers and sisters of the half blood, a sister of the half blood is entitled to one-sixth of that estate under the act of 1798, ch. 101, sub ch. 11; for the terms, "and there shall be no distinction between the whole and half blood," in the 11th section of the above act and sub chapter, run through the whole of that sub chapter.  

COUNSEL:
Frick, for the Appellant, contended, that in the distribution of personal estate under the act of assembly of 1798, ch. 101, among brothers and sisters, the half blood are not entitled to share with the whole blood; but that the same is to be distributed among the whole blood, to the exclusion of the half blood. He argued that the statutes 22 & 23 of Car II, ch. 10, and 29 Car. II, ch. 30, were superseded in this state by the testamentary system, 1798, ch. 101--the point was not, therefore, susceptible of illustration by analogy or argument from British authorities, but must depend upon the phraseology of our own act. The case before this court is that of brothers and sisters of the whole and half blood, and if governed entirely by the 9th section of the 11th sub chap. of the act of 1798, ch. 101, there is nothing in the point; for that section is that "every brother and sister of the intestate shall be entitled to an equal share, and [**5]  the child or children of a brother or sister of the intestate shall stand in the place of such brother or sister." But the 11th section of that sub chapter, which is in these words--"after children, descendants, father, mother, brothers and sisters, of the deceased, and their descendants, all collateral relations, in equal degree, shall take, and no representation amongst such collaterals shall be allowed; and there shall be no distinction between the whole and half blood," renders it at least ambiguous and doubtful, whether such was the intention of the legislature; and Chancellor Kilty, in Greenfield v Beckett & Blake, says, "the expressions are somewhat obscure," a. The 11th section of the 11th sub ch. as will be seen, after providing for children, descendants, father, mother, brothers and sisters, takes up all collaterals in equal degree, (meaning all other collaterals,) and here for the first time varies a material feature in all the former provisions; for it provides that there shall be no representation among such collaterals, and there shall be no distinction between the whole and half blood. These words, "such collaterals," must mean the last named collaterals, and if it was [**6]  necessary to say, that among them, there should be no distinction of blood, it follows as a necessary and irresistible implication, that among the collaterals previously named, there must subsist a distinction. This provision then is confined to such collaterals after brothers and sisters, and is not designed as a general provision to extend to all the preceding sections. Does not the conjunction and, by every rule of grammatical propriety necessarily couple it with the sentence immediately antecedent; and if so, does it not exclusively apply to such collaterals as are after brothers and sisters, and expressly determine that only after them the distinction between the whole and half blood shall cease? Again, if it was intended to embrace all the provisions of the chapter, the conjunction, the coupling link, would have been omitted, (if the authors of that law understood even the ordinary rules of grammar,) and the sentence would have stood alone, indisputable in its application. If it is contended that by the phrase "every brother and sister," in the 9th section, the legislature expressly negative any distinction. Have they not also expressly done so by the phrase "all collaterals,  [**7]  " in the 11th section? Why then should it be necessary to say in terms there shall be no distinction of half and whole blood among such collaterals? And if it is said equally to extend to both the 9th and 11th sections, (and by the 9th sect. from its very terms there is no distinction,) why should it be necessary to say it in any event? It stands then, in the chapter, as mere surplusage, and can be made to mean nothing more than the law would be without it. The law, however, did mean to distinguish, and it is only after brothers and sisters, that the distinction is said to cease; yet if every brother and sister of the whole and half blood could take, there was no distinction before. How then can their be a stopping point where the distinction is to end, if there was no distinction before? But the legislature did mean to distinguish, and placed the paragraph at the precise distinguishing point--all collaterals after brothers and sisters, and then goes on in the 12th sect. to provide "if there be no collaterals," then, &c. It is remarkable too, that this act, at least these sections, are taken almost verbatim from the act of 1715, which is in a great measure transcribed from the statutes [**8]  of 22 and 23 Car. but that neither of them contain any thing of the whole and half blood; and that under those statutes they share alike, not by designation of blood, but under the phrase "every of next of kindred in equal degree." See 3 Bac. Ab. 75, and the cases there referred to. It cannot be said that the law has no such policy as is here contended for, and that the distinction is feudal and odious. What policy is there for preferring the whole blood in descents and not in distribution? See also sect. 16, sub chap. 5, of the act of 1798, ch. 101, where the whole are preferred to the half blood in granting administrations. What reason can be assigned for this, if the distribution is designed to be equal? The construction here contended for by the appellant, however, renders both parts of the act compatible.

a The case here referred to of Greenfield v Beckett & Blake, was on a bill filed in the court of chancery in 1817, by the grandchild of a sister of a deceased intestate, who died in 1802, and left no widow or issue, but left a brother and sister, the children of a deceased sister, and the child (the complainant,) of a deceased niece, claiming to come in for his share of the personal estate of the deceased. The question submitted to the chancellor was, whether Barbara and her husband, and T. Bond and J. Beckett, &c. who survived the intestate, were not entitled in preference to the complainant, their nephew and son of Priscilla, who died before the intestate? Kilty, Chancellor, dismissed the bill. In his decree he remarked, "that the testamentary system (1798, ch. 101,) repealed the regulations in former acts and statutes only so far as they were inconsistent with that act. The act of 1715, ch. 39, taken chiefly from the statute of 22 Car. II, ch. 10, declared that there should be no representation among collaterals after brothers and sisters children. This provision remains in force, if not altered by the act of 1798, ch. 101. I do not perceive any alteration, although the expressions in the 11th sub ch. s. 11, are somewhat obscure. The complainant being the grandchild, cannot take per stirpes, because the law does not admit of such a representation, he being beyond a brother or sister's child; and he cannot take per capita with the brothers and sister's children who are nearer of kin to the intestate." [**9]  

Mayer and Latrobe, for the Appellees, were stopped by the court.  

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

OPINION:

 [*13]  THE COURT. The expressions, "and there shall be no distinction between the whole and half blood," in the 11th section of the 11th sub chapter of the act of 1798, ch. 101, run through the whole of that sub chapter, and include the whole and the half blood. The court do not think there is any ambiguity in that part of the act.
DECREE AFFIRMED.  

22 of 23 DOCUMENTS 

BUCHANAN vs. DESHON, et al.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

1 H. & G. 280; 1827 Md. LEXIS 20 

June, 1827, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from the Court of Chancery. The bill in this case was filed on the 1st of July 1818, by the appellees against Esther Buchanan, and others, as heirs at law of William Buchanan, deceased, for a sale of his real estate for the payment of debts due by him to the appellees. The answers admit the deficiency of personal assets, and the defendants assent to the sale of the real estate. They also state that they understand their mother, (who is the present appellant,) was a creditor also of the deceased under a marriage contract between her and the deceased, and refer to the same as it should be exhibited by their said mother. A decree passed as praved for, and the appellant, under the usual order in such cases for creditors to exhibit their claims, filed two petitions on the 9th of May 1820. The first praying to be allowed a dower interest in the proceeds of the property to be sold; and the second exhibiting the marriage contract between herself and the deceased, which is referred to by the answers, and praying to be allowed out of the said proceeds the amount due to her by the terms of the said contract, from the death of her husband.

The marriage contract here referred to, bears [**2]  date on the 7th Prairial of the 12th year of the French Republic, (27th of May 1803,) and is stated to have been entered into "before certain Notaries Public of the Isle of France, between William Buchanan, consul of the United States of America for the Islands of France and Bourbon, residing in the N. W. port of the Island of France, being of age, a native of Baltimore, state of Maryland, United States of America, stipulating for himself, and in his own name, of the one part, and Joseph Merven, residing in this place," &c. "stipulating for Miss Maria Emelia Louisa Merven, a native of this colony, now under age, his daughter; and Miss Merven, residing with her father, stipulating likewise for herself and in her own name, of the other part. Who in presence of their relations and friends hereafter named, to wit," &c. "have agreed as follows upon the civil conditions of the marriage which will immediately take place between Mr. Buchanan and Miss Merven." The only articles in the contract which seem to be necessary to be inserted are--"Article 8. The future husband has endowed, and endows his intended wife with an annuity of two thousand effective hard Spanish Piasters, by the name of [**3]  a settlement, (donaire prefix, or prefixed dower,) and exempt from all deduction, which she shall enjoy immediately upon the opening of said dower; the principal (fonds, or funds,) of which dower, at the rate of five per cent. shall go to the children which shall spring from the marriage of the future husband." "Article 9. The future husband makes by these presents a donation, in the best form that a donation can be rendered valid or take place, to his intended wife, who assents thereto under the authorization of Mr. Merven, her father, of all which the French or foreign laws permit him to dispose of, in any property which the said future husband may possess at the day of his death, in France and in foreign countries, whether there be then children in existence or to be born of the intended marriage or not. Should any children, living at the death of the future husband, afterwards die before or after coming of age, and before the intended wife, without having disposed of their property, and without legitimate issue, in that case the intended wife shall take the amount of the donation as if there had been no children." "Article 10. The future husband reserves to himself the power of [**4]  disposing of one-fourth of his property." [This translation of the marriage contract was made and agreed to at theargument in this court, on the appeal.] The property was (afterwards) sold by the trustee appointed by the chancellor to make sale thereof, for $ 14,230, and the proceeds brought into the court of chancery for distribution. The auditor, under the orders of the chancellor, stated several accounts, which were submitted, &c. Other facts established in the cause, will appear in the opinion delivered by

BLAND, Chancellor, (May 4th, 1825.) The claim of Maria E. L. Buchanan, designated in the auditor's report of the 30th of November 1820, as claim No. 6, has been presented in various points of view, and in every shape is met by strong objections. She is an alien, who never was in this country until after the death of her husband; and therefore, can take no benefit under the act of 1813, ch. 100. Consequently, she is not dowable, according to our law, of any real estate lying in this state, of which her husband was seized at any time during the coverture. As an alien, she might take and hold real estate lying in this state, against all but the state, under the marriage contract.  [**5]  But that contract was, in no respect, made and executed in such manner and form as the laws of this state require conveyances of real estate in Maryland to be made and executed; and, besides, it has no reference whatever to the lands mentioned in this case, or indeed to any real property in this state.

A court of equity will decree the execution of a marriage contract, by which the husband binds himself to settle upon his intended wife all the personal property which he should at any time during coverture be possessed of. Thus making the covenant attach upon each article, that should, from time to time, come into the possession of the husband. But in the eighth article of the contract, now under consideration, by which alone, if at all, this claim can be sustained, there is no general or specific designation of any property whatever, either real or personal.

The translation of the marriage contract is, in many respects, very defective. It appears, however, to have been made according to the legal forms usual in those countries governed chiefly by the civil law; and in reference to that code, as modified by the customs of Paris, by which, it is believed, the Isle of France,  [**6]  where the parties then lived, as well as all the other French colonies, were governed. The first part of the eighth article of this contract, on which this claim is said to be founded, speaks of a settlement to be made on the intended wife, to take effect on the marriage, of an income or jointure, (for dower, in the sense of our law it cannot be,) to be secured to her separate use, independently of her husband; in such manner, as was, no doubt, well known to the law of the place where the contract was made And, it then closes with declaring, that the capital of that income estimated at five per cent. should descend and pass to the issue of that wife by that marriage. It is a covenant, on the part of the husband, to settle upon his intended wife a jointure of a specified value, and of a particular character known to the laws of the Isle of France; "douaire prefix," an endowment in frank bank, or a peculiar species of marriage settlement, by which no particular kind or parcel of property whatever was specially designated and described; and, therefore, it never could have been considered, according to our law, as giving to the wife or children a lien or claim of any kind upon any property [**7]  of which the husband ever was, at any time, seized or possessed.

But marriage, even at law, will not extinguish any prior contract between the parties upon which a right of action cannot accrue during the coverture. As, where the intended husband covenanted to pay a certain sum of money to the intended wife, if she should survive him, or within a given time after his death; it was held, that the covenant was valid, and that the widow might recover the sum stipulated to be paid, from the executor of her deceased husband.

But the contract, in this case, does not merely stipulate for the payment of money upon the happening of a certain contingency, and nothing more. It is not a mere obligation for the payment of money by the husband to the wife in the event of her surviving him; but it is a marriage settlement, in which an income or jointure of a certain value is to be secured to the wife during her life, and after her death the capital of that income, at five per cent. is to go to her children by that marriage. The eighth article contemplates, as a part of the general settlement, the creation of one entire estate, out of funds, real or personal, to be provided by the husband,  [**8]  the income, or present beneficial interest in which, was to be vested in the wife for life, with remainder over to her children. There is nothing in the general sense, object, and scope of the article, which can warrant a court of justice in treating it as a mere obligation to pay a debt, or sum of money in gross, or in considering the widow, under it, as a mere creditor of her late husband. In short, a covenant, in contemplation of marriage, to create an estate for the benefit of a wife and children, cannot, by an undue degree of liberality, be made to mean an obligation to pay a debt, or sum of money to the wife, to the prejudice of real bona fide creditors. This claim of Maria E. L. Buchanan must, therefore, be rejected.

These principles being thus settled and determined, the case is hereby again referred to the auditor, with directions to state an account accordingly, and to report the same to the chancellor preparatory to a final order for a distribution of the funds in the hands of the trustee. From this decretal order Mrs. Buchanan appealed to this Court.  

DISPOSITION:
DECREE REVERSED.  

HEADNOTES:

An agreement between a man and his intended wife, in consideration of marriage, (which had none of the legal attributes of a marriage settlement, so as to overreach the claims of creditors,) to secure to her, for her own use, an annuity for life, may, after the marriage and the husband's death, be enforced by the wife against his representatives; and his estate, being insufficient to pay his debts, she will be treated as a general creditor to the extent of her claims under the agreement, and her dividend so invested, as to produce as much of the annuity as practicable. But in this case, the widow having only claimed payment of her annuity from the time of the death of her husband, her dividend was estimated upon its arrearages, from that time to the sale of his estate, and the interest which had accrued thereon.

By the same agreement, the children of the marriage, succeeding to the rights of the wife, the dividend of the husband's estate, invested for the benefit of the mother, will after her death, be divided equally among the children and their proper representatives.

An alien may purchase lands and hold them against every one, except the state, until office found, or until the government shall exercise its authority over them; but by the common law a feme covert, being an alien, is not entitled to be endowed, nor to inherit.

The act of 1813, ch. 100, does not authorise the endowment of a female alien, who during her coverture, never resided in the United States.  

COUNSEL:
R. Johnson, for the Appellant, contended,

1. That the appellant was entitled to dower at [**9]  common law, independently of the act of 1813, ch. 100.

2. If she was not so entitled, she is entitled to dower under the act of 1813, ch. 100.

3. If she is not entitled under that act, then she is entitled under the marriage contract.

4. She is entitled to come in as a preferred creditor under that contract.

5. She is entitled to claim her dower, and also a right to claim as creditor.

1. Is she entitled at common law? This is not a question between the state and Mrs. Buchanan, she being an alien. The land has been sold, and the question is between her and the creditors. It is laid down as a general rule, that an alien wife cannot be endowed. That is, she cannot claim against the state; not that she cannot claim against an individual. Her claim is good against all but the state. There had been no decision that an alien feme covert was not entitled to dower, and the object of the act of 1813, ch. 100, was to give to her the state's interest. An alien may acquire property by purchase for his own benefit; and no person can contest his right, but the state may. 1 Bac. Ab. tit. Alien, 8. M'Creery's Lessee vs Allender, 4 Harr. & M'Hen. 409. M'Creery's Lessee vs Wilson,  [**10]  Ib. 412. Co. Litt. 2, b, (note 3.) Page's case, 5 Coke, 52, b. Mooers vs White, 6 Johns. Ch. Rep. 360. Orr vs Hodgson, 4 Wheaton, 453. 2 Blk. Com. 132, 241.

2. If she is not entitled at common law, she is entitled under the act of 1813, ch. 100. This act was in force at the time of the death of the husband, then at the Isle of France. On his death his widow came to this country, and has resided ever since. It is admitted she was never here during the life of her husband. Her husband was a public agent of the government of the United States; and in construction of law his residence continued to be within the United States. An enlarged construction should be given to the act in favour of the widow. She has resided here since her marriage, although not during her marriage. This right of the widow is also secured to her by the act of March 1780, ch. 8, s. 2, and the seventh article of the convention between the United States and France of the 30th September 1800.

3. She is entitled to dower under the marriage contract. For this purpose the 8th and 9th articles only of that contract are important. A marriage settlement is to be construed liberally. If in a devise it would apply [**11]  to real as well as to personal estate, then under the ninth article it vested, one third in her of his real estate. She is to be considered as a purchaser. 2 Blk. Com. 292, 293. Higgenson vs Kelly, 1 Ball & Beatty, 252. Parkes vs White, 11 Ves. 235.

4. She is entitled to come in as a preferred creditor under the marriage contract. It was not void as to creditors; because there were no creditors at the date of the contract. But whether there was or was not a creditor at that time or since, a marriage contract is valid against prior as well as subsequent creditors. Nairn vs Prowse, 6 Ves. 759. Reade vs Livingston, 3 Johns. Ch. Rep. 494. By the 8th article of the contract she is to be considered as a creditor. The husband thereby covenanted that on his death his wife should receive an annuity of $ 2000. 5 Bac. Ab. tit. Obligations, 155. She is entitled to come in as a preferred creditor to the amount of her annuity. The husband having set no estate apart to pay her, makes no difference. He left no estate but the land out of which the fund in question has arisen; and it will be presumed that she should be paid out of it.

5. The allowance of the annuity is not stated to be in [**12]  lien of her dower; and the 9th article shows that it was not so intended. Birmingham vs Kirwan, 2 Sch. & Lef. 451. Foster vs Cook, 3 Bro. Ch. Rep. 347.

Marriott, for the Appellees. The claim of the appellant is to be considered in a two-fold view. 1. As to her dower at common law, or under the act of 1813, ch. 100. 2. As to her claim under the marriage contract.

1. It is well settled that an alien is not entitled to dower at common law. Co. Litt. 31, (note 9.) 1 Bac. Ab. tit. Alien, (C) 136 Kelly vs Harrison, 2 Johns. Cas. 29. The appellant never had a capacity to take. She never had any vested right. Vat. L. N. 102. The act of 1813, ch. 100, shows that there could be no claim to dower at common law, or that act would not have passed. That act gives dower only to married women being aliens, who may have been married in this country, and who reside here with their husbands, or at least they must be residents here at the time of the deaths of their husbands. The wife must reside here after her marriage--meaning she must reside here after and during her marriage in the lifetime of her husband, and not that she might come here and reside after the death of her husband. If that [**13]  were the case she might, after the death of her husband, come here and reside one week, receive her dower, and return to her own country. This was not the intention of the act of assembly, and it is not within its sound construction. The act of March 1780, ch. 8, is not applicable to this case. That act was predicated upon the then existing treaty between this country and France in 1778, which treaty has been since annulled by an act of congress in 1799. Congress alone could, since the adoption of the constitution, pass acts of naturalization; and they legislated upon this subject as early as 1790. The convention between the United States and France of 1800, expired in 1808, before any vested right accrued to the appellant, even if she could have claimed under it were it now in existence.

2. The contract relied on as a marriage settlement is not regularly that which it is stated to be. It is a mere contract. Rundle vs Murgatroyd, 4 Dall. Rep. 305. If it is marriage settlement it has not been legally executed agreeably to our laws, so as to operate upon the husband's real estate here. The widow, therefore, under that contract, is not entitled as a common creditor; but if she is [**14]  to be considered as a creditor at all, she cannot be a preferred creditor; she may come in after all the debts are paid. Prec. in Chan. 539. Underwood vs Hithcox, 1 Ves. 279. Anonymous, 2 Chan. Cas. 17. Emery vs Wase, 5 Ves. 846. The contract is unreasonable, and ought not to be enforced. 2 Pow. on Cont. 221, 222.

Mayer, on the same side. This is an unreasonable settlement, and should not be enforced against creditors. It is a vague instrument, dealing in generals, and is not formally executed agreeably to our recording laws, so as to affect real estate. It is not tantamount to a grant of an interest. The 8th article of the marriage contract gives a bounty to the wife out of the husband's general estate, in preference to his disposing power. She does not take as a purchaser, but she takes it as a gift. The fund produced by the sale of the real estate ought not to be appropriated to pay this bounty in exclusion of the creditors. Real estate in this state is similar to personal in payment of debts. This contract is not better than a voluntary settlement, which a court of equity will set aside when to the prejudice of creditors. To make it a marriage settlement an estate must be [**15]  set apart to meet the claim which the wife is to take after her husband's death. Garthshore vs Chalie, 10 Ves. 1, 20. To entitle the appellant to recover she must show she had a grant of the specific property which has been sold under the decree in this case. There can be no such thing between husband and wife as debtor and creditor. The wife to claim, must do so as purchaser. Rundle vs Murgatroyd, 4 Dall. Rep. 304. Where the husband receives the wife's funds, she cannot come upon his estate as a creditor. Powell vs Hankey, 2 P. Wms. 82. 1 Bac. Ab. 479. The eighth article of the contract looks to property to be thereafter settled on the wife in strict conformity to that contract. There being no settlement of any such property made, the covenant can have no effect. Suppose this land had been taken in execution during the life of the husband, what would have been the situation of the wife? She could not go into equity, because this land was not set apart to meet her claim. The contract is not to be regarded as an ante-nuptial settlement. It has none of the attributes of such a settlement; and not being so, the widow cannot be considered as a preferred creditor. It is a prodigal allowance [**16]  which a court of equity will not sanction--there was not a sufficient pecuniary consideration upon which to found it. Dewey vs Bayntum, 6 East. 257. If the widow is entitled to dower, send her to a court of law to recover it. She has no equity under so unequal a settlement with reference to her merit or her fortune. The act of 1813, ch. 100, gives her no right to dower, because her right must have commenced, and be consummated at the death of her husband. On his death she was not a resident of this state, or of the United States, and therefore no dower interest vested in her. Under the act of March 1780, ch. 8, French subjects might hold lands in this state. Mrs. Buchanan then may hold lands during her life, but that holding commences with her residence; but not to give birth to any right antecedently acquired. The right must commence after her residence. This act is nothing more than the act of 1813, ch. 100 It must be a residence during the life of the husband. The treaty was to secure the right of inheritance only--such an interest as could be devised; and it is inapplicable to the question now before this court. Dower is not claimed upon independent grounds in opposition to the [**17]  husband. It is a peculiar estate; and the wife is in as of the estate of her husband. Co. Litt. 241. a. The widow is not to be assimilated to a plaintiff in ejectment, where an alien may recover against an individual.

R. Johnson, in reply, referred to Chirac vs Chirac, 2 Wheat. 259. Kelly vs Harrison, 2 Johns. Cas. 29. 1 Bac. Ab. 484.

Curia adv. vult.  

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

OPINIONBY:
ARCHER 

OPINION:

 [*289]  ARCHER, J. at this term, delivered the opinion of the Court. The creditors of William Buchanan applied to the court of chancery for the sale of his real estate to pay his debts, his personal estate being insufficient for that purpose. A decree passed for its sale, and the proceeds were brought into the court of chancery for distribution. Mrs. Buchanan, his widow, to whom he was married in the Isle of France in the year 1803, applied by petition to the court of chancery to receive a dividend as a creditor, in virtue of certain marriage articles entered into between herself and her husband before their intermarriage in the Isle of France; and also claimed that a certain portion of the proceeds of sale [**18]  should be allotted to her in lieu of her dower in the lands. Mrs. Buchanan was an alien, never naturalized, and continued to reside in a foreign country until the death of her husband. Both these pretensions have been rejected by the chancellor, and she seeks redress from his judgment by an appeal to this court.
Mrs. Buchanan, being an alien, is by the common law not entitled to dower in the lands whereof her husband died seized. An alien may purchase lands, and hold them against every one, (except the state,) until office found, or until the government shall exercise its authority over them. But an alien cannot inherit lands--the law, which never does any thing in vain, will not cast the inheritance upon one whom its policy forbids should hold it.
The widow cannot be considered as a purchaser, and, therefore, entitled to hold her dower until office found, but comes to her estate by operation of law, as does an heir by descent; and, therefore, cannot take it, and is in the same predicament as an 

 [*290]  alien claiming to inherit. Either could take by act of the parties, as by purchase, but neither by operation of law.
The act of assembly of 1813, ch. 100, which authorises [**19]  the endowments of aliens residing after their intermarriage in the United States, does not, it is believed, reach a claim situated as this is. Mrs. Buchanan never resided, as it is admitted, at any time during the coverture, in the United States, and without such residence she was not entitled to any benefit of the provisions of that law. The legislature contemplated a capacity to take dower at the instant of the husband's death, and did not mean that the estate, which should descend to the heirs at law, should be liable even for a season, at any distant period to be divested by the contingent removal and residence of the widow within the limits of the state.
It is not perceived what operation the treaties between the United States and the French government of 1778 and 1801, or the act of assembly of 1780, ch. 8, can have in giving effect to the claim of the appellant to dower. The seventh section of the last convention gave to French subjects power to dispose by donation, testament, or otherwise, of goods, moveable or immoveable, held in the territory of the United States, to such persons as they shall think proper; and by the same article [**20]  the capacity to inherit is conferred on the citizens of the then French Republic. Thus was given the power to devise, and the capacity to inherit. It is doubtful whether by the most liberal construction, this clause in the treaty could be made to extend to a claim for dower; yet if extreme liberality were to give to its terms such a construction, yet it must be observed that the treaty expired by its own limitation in 1809, before the death of William Buchanan. If a right had vested under this treaty, there can be no doubt but that such right would be maintained notwithstanding the expiration of the treaty, and that it would have been equally valid as if the treaty had a perpetual duration. But Mrs. Buchanan had no vested right, it was altogether contingent, depending upon her surviving her husband, and her rights actually accruing before the treaty should expire. It had (if the treaty by any possibility could be considered as embracing it,) a mere inception and commencement, and was not perfected and complete until the death of 

 [*291]  her husband, and until the treaty had expired, at which time her capacity to take her dower, with which she might have been clothed,  [**21]  during the existence of the treaty, ceased with the expiration of that convention.
The treaty of 1778, (which was followed by the act of 1780, ch. 8,) provided the subjects of the King of France should not be reputed aliens, and gave a disposing and inheritable capacity to them; but whatever might be considered the operation of this treaty, it was abrogated in 1798, long before any right to dower in the appellant could have had even an inception; and the act of 1780, ch. 8, (passed no doubt in part with the view of giving efficacy to the liberal principles of this treaty, and from a supposed necessity of some legislative act being necessary to give operation to it, being passed as it was under the confederation,) will be found not to be coextensive with the provisions of the treaty to which it refers, and to contain no enactment (considering it as a permanent law,) which reaches, or in any manner could affect the claim of the appellant.
From the above views it appearing that Mrs. Buchanan's alienage would preclude her from her enjoyment of dower, it is rendered unnecessary to examine the marriage articles for the purpose of ascertaining whether the covenants therein [**22]  contained legally or equitably barred her of dower, nor shall we express an opinion upon that subject.
If the appellant is not entitled to dower, it is contended that she is entitled to be considered as a preferred creditor, to the extent of her claim, under the marriage articles, or, at all events, to be considered as having an equal right with the other creditors for a distributive share of the proceeds of sale.
It is not perceived upon what ground her pretensions to a preference can be rested. The articles cannot be viewed as a settlement, but must be considered merely in the light of a covenant or agreement made for the valuable consideration of marriage. To maintain this position no authorities need be cited; it may be sufficient to say that the marriage articles have no one legal attribute of a marriage settlement, so as to overreach the claims of creditors. But why should she not be considered in the light of a general creditor of her husband's estate, and although entitled to no preference, yet to an equal claim with the rest of 

 [*292]  the creditors? The absence of a settlement has no bearing on the question. A legal obligation can be created without such settlement. [**23]  A covenant or agreement before marriage, to pay her a given sum of money, could, after his decease, be enforced against the husband's representatives. Then why could not this agreement to pay her an annuity? It was made upon a consideration which was valuable, and one upon which the law always looks with a favourable eye. The mode stipulated by which it is to be raised ought not to affect her substantial rights under the agreement. The great object of the 8th article was to secure her the payment of an annual sum, and must be equivalent to an agreement or obligation for that purpose--the mode by which it was to be effected was to her immaterial. Had a settlement, after marriage, been made, grounded upon this ante-nuptial agreement, it would have been clearly sustainable against the claims of the creditors. Rob. Fraud. Conv. 218. And it is not perceived why a failure on the husband's part to comply with the agreement, can have the effect, not only of depriving the wife of a preference over other creditors, but of postponing her claim until they shall be entirely satisfied. The obligation to pay cannot be lessened by the neglect to set apart the fund from which the annuity might [**24]  arise. If we ought not to look with peculiar beneficence upon her claim, it is surely entitled to equal regard and consideration with those of the creditors. Her pretensions are condemned by no fraudulent considerations, but are built upon the same moral foundation upon which those of the creditors rest.
Her right to come in with the general creditors having been determined, the extent of that claim is the next question for consideration. The 8th article of the marriage agreement, upon which it rests, is peculiarly worded; but we cannot doubt, upon a just construction of it, that she was to receive an annuity during life of $ 2000.
It would be difficult to resist the claim of Mrs. Buchanan to the payment of the annuity during the whole period of the marriage. We conceive that it commenced at the period of their union; for the parties covenant that there shall be no community of property, and the husband covenants to support the domestic establishment, and to maintain his wife and children 

 [*293]  out of his own resources. Hence there could be no room to suppose or presume that this annuity was applied during coverture to the maintenance of the wife, as it might be if the [**25]  husband had not explicitly bound himself to support her out of his own estate. We could not consider her maintenance as equivalent to the annuity, because it does not appear to be secured for such an object. Nor can we conceive that the circumstance of her never having demanded it during her coverture, could be considered as a waiver of her right, for she was under the legal control of her husband, and sufficient reason might spring from such a consideration for her failure to demand the annuity; but we are precluded, from the shape in which these proceedings are presented to the court, from making her a creditor on the estate for the amount of her accruing annuity during coverture, as it does not appear to have been claimed on her part, and she only seeks to be considered a creditor from the death of her husband.
The auditor has valued the life annuity, and added it to the arrearages claimed, for the purpose of ascertaining her debt; and, for the purpose of ascertaining the children's claim he has given them in presenti, a sum in lieu of what they are by the contract to receive at their mother's death. It must be observed, as an objection to this course, that the children by [**26]  the agreement were not to have any thing until their mother's death; and the contract of the husband with the wife and children, will be both gratified by considering the capital of $ 40,000, from which was to arise the annuity, as a claim entitled to a dividend, equally with the other claims, which dividend should by the court of chancery be invested in some profitable stock, the accruing interest on which should be directed to be paid to the mother for life, and the principal at her death be distributed equally among the children. The auditor has calculated the arrearages of the annuity from the death of W. Buchanan, with the accruing interest to the day of sale. These arrearages properly constitute the debt due her, and when the amount shall have been ascertained she must, for such an amount, be considered a creditor, and entitled to a dividend. This dividend then, together with the interest which shall arise on the investment, which it has 

 [*294]  been suggested should be made, will constitute her entire claim against the estate of her husband.--Decreed, that the order or decree of the court of chancery of the 4th of May 1825, so far as it rejected the claim of the [**27]  appellant to be allowed any portion of the proceeds of the sale of the real estate of her husband, William Buchanan, be reversed, with costs to the appellant, both in this court and in the court of chancery. And this court proceeding to decree, as they are of opinion the chancellor should have done, do further decree, that the appellant is entitled to a dividend out of the amount of the proceeds of the sale of the said real estate, as a general creditor upon the said fund to the amount of the arrearages of the annuity due to her under the marriage contract between herself and her said husband, in the proceedings mentioned, together with the accruing interest on the said annuity from the time of the death of her said husband, to the time of the sale of his said real estate, as estimated and ascertained by the auditor of the court of chancery by his account in the proceedings accompanying his report of the 30th of November 1820. Decreed also, that over and above the said amount due to the appellant for the arrearages of the said annuity, and with a view to give her the full benefit of the said marriage contract, as far as may be, consistently with the rights of the other [**28]  creditors of the estate of William Buchanan, and of the rights secured to the children of the said marriage, that the capital of $ 40,000 from which the annuity to the appellant, under the said marriage contract, was to arise, be considered as a claim entitled to a dividend equally with the other proper claims against the proceeds of the sale of the said real estate. Decreed also, that the amount of the said dividend upon the said sum of $ 40,000 be invested by the court of chancery, or under its direction, in some profitable stock, or in some good real securities, as in the discretion of the chancellor shall seem to him sufficient, and under all circumstances most to the interest of the appellant and her said children, to be selected by the court of chancery; and that the said court shall direct the whole of the interest or profits which may from time to time accrue upon the said stock or real securities as aforesaid, during her life, to be paid to the appellant, or her representatives; and that at her death, the 

 [*295]  whole of said investment of the dividend of $ 40,000 be divided equally among the children of the marriage of the appellant, and the said William Buchanan [**29]  , or their proper representatives. Decreed also, that the chancellor pass all such orders and decrees in the premises as may be necessary to carry this decree into effect.
DECREE REVERSED, &c.  

23 of 23 DOCUMENTS 

THE UNION BANK OF MARYLAND vs. RIDGELY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

1 H. & G. 324; 1827 Md. LEXIS 23 

June, 1827, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court. This was an action of debt, brought by the appellants against the appellee, as one of the sureties in the following writing obligatory, to wit: "Know all men by these presents, that we, Ralph Higginbothom, Robert Purviance, Daniel Delozier, Edward Johnson and Nicholas G. Ridgely, are held and firmly bound unto the President and Directors of the Union Bank of Maryland, and their successors, in the just and full sum of fifty thousand dollars, to be paid to the said President and Directors of the Union Bank of Maryland, or their certain attorney, their successors or assigns: To which payment well and truly to be made and done, we bind ourselves, jointly and severally, our, and each of our executors, administrators and assigns, firmly by these presents: sealed with our seals, and dated this thirtieth day of March, in the year of our Lord, eighteen hundred and five. Whereas, the said President and Directors of the Union Bank of Maryland have taken and employed the said Ralph Higginbothom in the capacity of Cashier, and such other business as the said President and Directors of the Union Bank of Maryland shall think fit to employ him about. Now the condition [**2]  of the above obligation is such, that if the above bound Ralph Higginbothom shall and do, from time to time, make and give to the President and Directors of the Union Bank of Maryland, and their successors, a just and true account in writing, and discharge himself of, for and from, and likewise pay and deliver unto the said President and Directors of the Union Bank of Maryland, and their successors, all such sum or sums of money, bills, notes, goods and things whatsoever, which he shall from time to time receive, discharge, or which shall come to his hands, charge or custody, of or belonging to the said President and Directors of the Union Bank of Maryland, or their successors, or of any other person or persons whatsoever, wherewith they, the said President and Directors of the Union Bank of Maryland, or their successors, shall be charged or chargeable; and shall in all things, well and truly perform the duties of Cashier, to the said President and Directors of the Union Bank of Maryland; and also, if the said Ralph Higginbothom, Robert Purviance, Daniel Delozier, Edward Johnson and Nicholas G. Ridgely, or either, or any of them, either or any of their heirs, executors, or administrators,  [**3]  shall and do make and give, or cause to be made and given, unto the said President and Directors of the Union Bank of Maryland, or their successors, full satisfaction and recompense of and for all such monies, bills, notes, goods, wares and effects, or other things whatsoever, of or belonging to the said President and Directors of the Union Bank of Maryland, or their successors, or of any other person or persons wherewith they, the said President and Directors of the Union Bank of Maryland, or their successors, shall or may be charged or chargeable, which, at any time or times, shall appear to have been received or discharged by, or come to the hands charge or custody of the said Ralph Higginbothom, and which he shall not duly account for, pay, deliver or discharge himself from, to the said President and Directors of the Union Bank of Maryland, and their successors, or which he shall be found, confessed or proved to be wasted, embezzled, misspent or otherwise made away with, or unjustly detained by the said Ralph Higginbothom, or by any other person or persons by or through his means, privity or procurement, then the above obligation to be void and of none effect, otherwise to be and [**4]  remain in full force and virtue in law." Signed and sealed by the obligors. The defendant, (the appellee,) craved oyer of the bond, and pleaded.

First Plea. "That the plaintiffs ought not to have or maintain their aforesaid action thereof against him, the said Nicholas, because he says, that the said Ralph Higginbothom, in the condition of the said writing obligatory mentioned, from the time of the appointment of the said Ralph, as Cashier, by the said plaintiffs, and from the time of the making of the said writing obligatory, hitherto hath well and truly observed, performed, fulfilled and kept, all and singular the matters and things in the condition of the said writing obligatory mentioned and comprised, in all things therein contained on his part and behalf to be observed, performed, fulfilled and kept; and hath from time to time made and given unto the said plaintiffs, a just and true account in writing, and hath discharged himself of, for and from, and hath likewise paid and delivered unto the said plaintiffs, all such sum or sums of money, bills, notes, goods and things whatsoever, which he, the said Ralph, did, from time to time, receive, discharge, or which came to his [**5]  hands, charge or custody, of or belonging to the said plaintiffs, or of or belonging to any other person or persons whatsoever, wherewith the said plaintiffs should or might have been charged or chargeable; and also, that he, the said Ralph, hath, in all things, well and truly performed the duties of a cashier to the said plaintiffs, to wit, at the county aforesaid, and this the said Nicholas is ready to verify: wherefore he prays judgment if," &c.

Second Plea. "That the plaintiffs ought not to have or maintain their aforesaid action thereof against him, the said Nicholas, because he says, that by a certain act of the general assembly of this state, made and passed at a session of assembly, begun and held at the city of Annapolis, on the fifth day of November, in the year eighteen hundred and four, and ended the twentieth day of January, eighteen hundred and five, entitled, An act to incorporate the stockholders in the Union Bank of Maryland, the proprietors of shares in the said bank, as well as those who might thereafter become stockholders, their successors and assigns, were created and made a corporation and body politic, by the name and style of The President and Directors [**6]  of the Union Bank of Maryland; and it was, amongst other things, enacted by the said act, that the same, that is to say, the said act, should continue in force until the expiration of the year eighteen hundred and fifteen, and until the end of the next session of assembly thereafter. And the said Nicholas further says, that at the time the said Ralph Higginbothom, in the said supposed writing obligatory mentioned, was appointed cashier of the said Union Bank of Maryland, by the directors thereof, and at the time of the making of the said writing obligatory, to wit, on the thirtieth day of March, in the year eighteen hundred and five, the said President and Directors of the Union Bank of Maryland, were acting under, and conformably to, the said act of assembly; and under and by virtue, and in pursuance of said act, the said Ralph Higginbothom was appointed cashier as aforesaid, and that the said supposed writing obligatory was made and delivered to secure the faithful performance of the duties of cashier, and of the other acts and things therein mentioned, by the said Ralph, for and during, and until the expiration of the said act of incorporation or charter, and no longer, to wit,  [**7]  at the county aforesaid. And the said Nicholas further says, that the said Ralph Higginbothom, from the time he was so appointed cashier as aforesaid, and from the time of making of the said supposed writing obligatory, and from thence until the expiration of the year eighteen hundred and fifteen, and until the end of the next session of assembly thereafter, to wit, until the sixth day of February, eighteen hundred and seventeen, hath well and truly observed, performed, fulfilled and kept, all and singular the matters and things in the condition of the said supposed writing obligatory mentioned and comprised, in all things therein contained, on his part and behalf to be observed, performed, fulfilled and kept; and hath from time to time, made and given unto the President and Directors of the Union Bank of Maryland, for the time being, a just and true account in writing, and hath discharged himself of, for and from, and hath likewise paid and delivered unto the President and Directors of the Union Bank of Maryland, for the time being, all such sum or sums of money, bills, notes, goods, and things whatsoever, which he, the said Ralph did, from time to time, receive, discharge, or which [**8]  came to his hands, charge or custody, of or belonging to the President and Directors of the Union Bank of Maryland, for the time being, or of or belonging to any other person or persons whatsoever, wherewith the said President and Directors of the Union Bank of Maryland, for the time being, or their successors, should or might have been charged or chargeable; and also, that he, the said Ralph, hath, in all things, well and truly performed the duties of a cashier to the President and Directors of the Union Bank of Maryland, for the time being, to wit, at the county aforesaid; and this the said Nicholas is ready to verify: Wherefore he prays judgment if," &c.

Third Plea. "That the plaintiffs ought not to have or maintain their aforesaid action thereof against him, the said Nicholas, because he says, that the act of assembly incorporating the said President and Directors by its original limitation, would have expired long before the commencement of the said action, to wit, on the sixth day of February, in the year eighteen hundred and seventeen, and that the said act was continued and extended by an act of assembly, passed at December session, eighteen hundred and fifteen, entitled,  [**9]  An act declaring the continuation and extension of the charters of the several banks therein mentioned, upon condition that the said President and Directors fulfilled and complied with the terms and conditions of the act of assembly, passed at December session, eighteen hundred and thirteen, entitled, A supplement to the act, entitled, An act to incorporate a company to make a turnpike road leading to Cumberland, and for the extension of the charters of the several banks in the city of Baltimore, and for other purposes. And the said Nicholas in fact says, that the said President and Directors have not fulfilled and complied with the terms and provisions of the said last act; because the said President and Directors have not subscribed for as much stock in the company incorporated by the said act, as by the second section of the said act, the said President and Directors were directed and ordered to subscribe for; and because the said President and Directors, though directed and ordained by the seventh section of the said act so to do, have not paid annually on the first day of January, after the first day of January, eighteen hundred and fifteen, the sum of twenty cents upon every [**10]  hundred dollars of the capital stock of the said President and Directors, which was and has been actually paid into the treasury of the western shore of the state of Maryland, but, on the contrary, the said President and Directors have neglected to pay the same, as well when the same became payable, as for the space of six months thereafter, to wit, at the county aforesaid. By means whereof, and long before the commencement of the present action, to wit, on the fifth day of February, in the year eighteen hundred and seventeen, the charter of or the act incorporating the said President and Directors, became and was null and void, and of no force, and the said President and Directors ceased to have any right to have or maintain any action or suit whatever, to wit, at the county aforesaid; and this, the said Nicholas is ready to verify. Whereupon he prays judgment if," &c.

Fourth Plea. "That the plaintiffs, their action aforesaid thereof against him the said defendant, ought not to have or maintain, because he says, that it was the duty of a committee of the board of directors of the said bank, consisting of at least three of their number, to visit in rotation at least once in every [**11]  three months during the time which said Ralph was cashier of the said Union Bank, the vaults in which the cash and other valuable effects belonging to or in the custody of the said bank, were deposited; and also, to make, or cause to be made in their presence an inventory of the same, to be compared with the books, in order to ascertain their agreement therewith, and make a report to the board. And the said defendant avers, that a committee of the board of directors, consisting of at Jeast three of their number, did not visit in rotation at least once in every three months, during the time which said Ralph was cashier of said Union Bank, the said vaults, nor did the said committee make, or cause to be made in their presence, an inventory of the said cash and other valuable effects to be compared with the books, in order to ascertain the agreement of the said cash and other valuable effects with the said books, nor did the said committee make a report to the board, but on the contrary thereof, the aforesaid matters and things, which it was the duty of said committee to have done, they wholly neglected and omitted to do, to wit, at the county aforesaid. And the said defendant further [**12]  says, that any loss, damage or injury, which may have happened to, or been sustained by the said plaintiffs, has happened and been sustained by reason and on account of the said neglects and omissions of them the said plaintiffs; and this he is ready to verify; wherefore the said defendant prays judgment if," &c.

Fifth Plea. "That the plaintiffs ought not to have or maintain their aforesaid action thereof against him, because he says, that by a certain act of the general assembly of this state, made and passed at a session of assembly, begun and held at the city of Annapolis, on the fifth day of November, in the year one thousand eight hundred and four, entitled, An act to incorporate the stockholders in the Union Bank of Maryland, the proprietors of shares in the said bank, as well as those who might thereafter become stockholders, their successors and assigns, were created and made a body politic and corporate, by the name and style of The President and Directors of the Union Bank of Maryland, and it was amongst other things enacted by the tenth section of the said act, that certain rules, restrictions, limitations and provisions, should form and be fundamental articles of the [**13]  constitution of the said corporation. And the said Nicholas further saith, that by the second of said fundamental articles of the said constitution, it is, amongst other things, provided, that no director, having served for three years successively, shall be eligible for the two succeeding years thereafter. And the said Nicholas further saith, that at the time the said Ralph Higginbothom, in the said supposed writing obligatory mentioned, was appointed cashier of the said Union Bank, by the directors thereof, and at the time of the making the said supposed writing obligatory, to wit, on the twentieth day of March, in the year one thousand eight hundred and five, the said President and Directors of the said Union Bank of Maryland, were acting under and by virtue of the said act of assembly and conformably thereto. And the said Nicholas further saith, that afterwards, to wit, on the thirty-first day of December, one thousand eight hundred and six, at a session of the general assembly of this state, begun and held at the city of Annapolis, on the third day of November, in the said last year, an act was made and passed by the said general assembly, at the request and solicitation of the [**14]  said President and Directors of the Union Bank of Maryland, and without the knowledge or consent of the said Nicholas, entitled, An act supplementary to an act, entitled, An act to incorporate the stockholders in the Union Bank of Maryland; by which said supplementary act it was enacted, that so much of the said second fundamental article of the constitution of the said bank, as rendered a director, after serving for three years successively, ineligible for the two succeeding years, should be, and was thereby repealed. And the said Nicholas further said, that the said President and Directors of the said bank, and the stockholders therein, assented to the said repeal of so much of the said second fundamental article, and have always, ever since, acted under and conformably to the said original act, as thus altered, and in part repealed, and that at an election of directors of the said bank, held on the first Monday in July, in the year one thousand eight hundred and eight, sundry persons who had been elected and served as directors of said bank, for three successive years previous to the said last mentioned day, were and have been, ever since, continually re-elected directors of said [**15]  bank, and served as such. And the said Nicholas further saith, that the said Ralph Higginbothom, from the time of his appointment as cashier of said bank, and from the time of the making of the said supposed writing obligatory, and from thence until the said first Monday in July, in the year last aforesaid, did, from time to time, make and give unto the said President and Directors of the Union Bank of Maryland, a just and true account in writing, and discharge himself, of, for and from, and did likewise pay and deliver to the President and Directors of the Union Bank of Maryland, for the time being, all such sum or sums of money, bills, notes, goods and things whatsoever, which he the said Ralph did, from time to time, receive, discharge, or that came to his hands, charge or custody, of or belonging to the said President and Directors of the Union Bank of Maryland, or of or belonging to any other person or persons whatsoever, wherewith the said President and Directors of the Union Bank of Maryland, for the time being, or their successors, were or might have been charged or chargeable; and also, that he, the said Ralph did, in all things, well and truly perform the duties of cashier [**16]  to the said President and Directors of the Union Bank of Maryland, for the time being, to wit, at the county aforesaid; and this, the said Nicholas is ready to verify; wherefore he prays judgment if," &c. To these pleas the plaintiffs replied, viz.

Replication to 1st plea. "That they, by any thing by the defendant, in his first plea, by him above pleaded, ought not to be barred from having their said action thereof against him, because, protesting," &c. "For plea, nevertheless, by way of replication to the said plea, by the defendant, first above pleaded, the plaintiffs say, that at a session of the general assembly of Maryland, begun and held at the city of Annapolis, on the fifth day of November, in the year eighteen hundred and four, amongst others, a certain act of assembly was passed, entitled, An act to incorporate the stockholders in the Union Bank of Maryland, (1804, ch. 48,) which follows in these words, to wit:

An Act to incorporate the Stockholders in the Union Bank of Maryland.

[The following appear to be the only material parts of the act necessary to be noticed.]

1. WHEREAS the president and directors of the Union Bank of Maryland, on behalf of themselves [**17]  and others, proprietors of stock in the said bank, have petitioned this general assembly, setting forth, that sundry persons, by articles of voluntary association, have contracted and agreed, each with the other, to conduct and carry on the usual operations of the banking system, at the city of Baltimore, under the name and style of The President and Directors of the Union Bank of Maryland, and praying that an act may pass to incorporate the stockholders in the said bank; and the same being reasonable, Therefore,

II. Be it enacted by the General Assembly of Maryland, That the said bank shall be, and the same is hereby established at the city or precincts of Baltimore, at the discretion of the president and directors; and the capital stock of the said bank shall consist of three millions of dollars, money of the United States, divided into shares of one hundred dollars each; and that five thousand shares be reserved for the use and benefit of the state of Maryland, to be subscribed for by the said state, when desired by the legislature thereof.

VI. And be it enacted, That the president and directors of the said bank, to wit: William Winchester, President, James A. Buchanan,  [**18]  Solomon Etting, David Winchester, Andrew Ellicott, jr., Luke Tiernan, Charles Ridgely, of Hampton, Solomon Birckhead, Thomas M'Elderry, Walter Dorsey, Henry Payson, Hezekiah Clagett, Isaac Tyson, Ebenezer Finley, Stewart Brown, John Hollins and Henry Schroeder, shall continue to act as such, until the first Monday of July, eighteen hundred and five, and until a new election of directors shall take place.

VII. And be it enacted, That the affairs of the said company shall be conducted by a president and sixteen directors, together with such other directors as the state shall appoint, in the manner hereinafter directed, and that there shall be an election of sixteen directors, by ballot, on the first Monday in July next, and on the first Monday in July of each and every year thereafter, by the stockholders and proprietors of the capital stock of the said corporation, and by plurality of votes, at such place, and in such manner, as the president and directors for the time being shall appoint; and those who shall be chosen at any election, shall be capable of serving as directors, by virtue of such choice, until the end and expiration of the first Monday of July next ensuing the time [**19]  of such election, and no longer, unless in case of failure of election on the day appointed, and in that case, until such election takes place, and the said directors, at the first meeting after such election, shall choose a president. And in case it should happen that an election of directors should not be made upon the day, when, pursuant to this act, it ought to have been made, the said corporation shall not, for that cause, be deemed to be dissolved; but it shall be lawful, on any other day, within ten days thereafter, to hold and make an election in such manner as shall have been regulated by the laws and ordinances of the said corporation. And in case of the death, resignation, disqualification, or removal out of the state of a director, or his being appointed president of the bank, his place may be filled up by the directors, for the remainder of the year.

VIII. And be it enacted, That the directors for the time being shall have power to appoint a cashier, and such other officers and servants under them, as may be necessary for executing the business of the said corporation, and to allow them such compensation for their services respectively, as shall appear reasonable.  [**20]  

IX. And be it enacted, That the president and directors for the time being, may make all such rules, orders, by-laws and regulations, for the government of the said corporation, its officers and servants, as they, or a majority of them, from time to time shall think fit, not inconsistent with law or the provisions of this act, the same at pleasure to revise, alter and annul, and may use, employ and dispose of the funds, money and credit of the said bank, as they, or a majority of them, may deem expedient, subject, however, to the restrictions and limitations hereinafter mentioned.

X. And be it enacted, That the following rules, restrictions, limitations and provisions, shall form and be fundamental articles of the constitution of the said corporation, viz. &c.

2d. None but a stockholder, except in the case of director chosen by the state, being a citizen of the United States, shall be eligible as a director or president; and every president or director, as the case may be, shall cease to be a director or president upon his ceasing to be a stockholder, and not more than eleven directors in office shall be eligible for the next succeeding year; and no director, having [**21]  served for three years successively, shall be eligible for the two succeeding years thereafter.

7th. The president, each director, cashier or treasurer, before he enters upon the duties of his office, shall take the following oath, or affirmation, as the case may be: I    , do swear, or affirm, that I will faithfully, impartially, diligently and honestly, execute the duties of    , agreeably to the provisions of law, and the trust reposed in me, to the best of my skill and judgment.

9th. The president and eight directors, shall constitute a board for the transaction of business, but ordinary discounts may be done by the president and five directors; in case of sickness, or the necessary absence of the president, his place may be supplied by a director, who he, by writing under his hand, shall nominate for the purpose.

14th. Every cashier, or treasurer, before he enters upon the duties of his office, shall be required to give bond, with two or more sureties, to the satisfaction of the president and directors, in a sum not less than fifty thousand dollars, with condition for his good behavior.

XI. And be it enacted, That this act shall continue in force until [**22]  the expiration of the year eighteen hundred and fifteen, and until the end of the next session of assembly thereafter.

And the plaintiffs further say, that after the passage of the said act, and in pursuance thereof, and conformably thereto, the said directors for the time being, did constitute and appoint the said Ralph to be the cashier of the said Union Bank of Maryland, to wit, on the first day of March, in the year eighteen hundred and five, to wit, at the county aforesaid; and the plaintiffs further say, that in pursuance of, and in conformity to, the said act of assembly, the said president and directors for the time being, did afterwards, to wit, on the twentieth day of February, in the year eighteen hundred and five, make certain rules, by-laws and regulations, for the government of the said corporation, its officers and servants, to wit, at the county aforesaid; which said by-laws follow in these words:--

The first code of By-Laws adopted by the Union Bank of Maryland, and which remained in force until the 4th of October 1819, when they were repealed, and those in the printed copy, adopted.

BY-LAWS.

[The following appear to be the only parts of the by-laws [**23]  material in this cause.]

Art. 1. The President and Directors of the Union Bank of Maryland, shall take charge of the cash belonging to the said bank, shall receive deposits, issue bills or notes, signed by the president and countersigned by the cashier, to any amount they may think necessary, not exceeding two millions of dollars; discount bills or notes, at the rate of interest charged by other banks in the city of Baltimore, and shall do and perform all such matters and things, as may be necessary for conducting and carrying on in a proper manner, the business of said bank; and during the first six months of the operation of this bank, no note or bill shall be discounted for any term exceeding sixty days.

Art. 2. And be it ordained by the President and Directors of the Union Bank of Maryland, That all and singular the resolutions and acts of the late commissioners and present directors until this time, be and are hereby confirmed, and held to be good and valid to all intents and purposes, as if the same had been made, and entered into at a regular meeting of the stockholders.

Art. 4. That the bank shall keep open for ordinary business from nine o'clock in the morning [**24]  till three o'clock, P. M. every day except Sundays, Christmas day and the fourth day of July.

Art. 5. That all bills and notes offered for discount shall be delivered into the bank on such day or days in each week as the directors may hereafter appoint, and be laid before the directors on the next succeeding day, (together with a state of the funds of the bank, at least twice a week) on which day the discount shall be settled, and be drawn for accordingly, at any time after twelve o'clock, and the notes or bills, not discounted, shall be returned on demand.

Art. 6. That all discounts shall be made on personal security, with at least two responsible names, (the firm and all the partners of a house being considered as one name only,) allowing three days grace on all notes and bills payable at the bank, and discount to be taken for the same.

Art. 7. That to entitle a note or bill to be discounted at this bank, the maker or acceptor thereof must usually reside in the city of Baltimore or precincts thereof; and notes made at a distance must have two responsible names residing in the city or precincts aforesaid.

Art. 18. That it be the duty of the president to pay all [**25]  possible attention to the operations of the bank; to take into his safe keeping (at the bank) the plates, paper moulds and bank paper; to superintend the printing at the bank of all bills or notes that may be printed; to keep a regular account of the bank paper, and of the quantity from time to time ordered for impression; to superintend the duty of all persons employed in the bank; to sign all bills and notes which may be issued; and should this bank be incorporated, the president is to have in his charge and custody, the seal of the corporation, and cause the same to be affixed to all such instruments and documents, as the board of directors shall order or authorize; and do all other matters and things that the law directs.

Art. 19. That it shall be the duty of the cashier to counter-sign at the bank, all bills or notes signed by the president; carefully to observe the conduct of the persons employed under him; daily to examine the settlement of the cash account of the bank; to count the money deposited in the vaults; to compare the amount thereof with the balance of the cash account that day, and in case of disagreement, to report the same to the directors as early as possible;  [**26]  for which purpose, if necessary, the president may call a special meeting.

Art. 22. That a committee of the board of directors, consisting of at least three of their number, shall, in rotation, visit the vaults in which the cash and other valuable effects are deposited, at least once in every three months, and make, or cause an inventory of the same to be made in their presence, to be compared with the books, in order to ascertain their agreement therewith, and make a report to the board; that on the door of the great vault, there shall be three locks, and that the president, cashier and first teller, shall each keep a key.

Art. 24. That a book shall be kept for the use of the board of directors, in which all discounted notes and bills shall be entered, in such manner as to discover at one view, on each discount day, the amount which any person is indebted to the bank, on such notes and bills, in the capacity of payer, and in the capacity of discounter severally.

Art. 26. That the president and directors of the bank aforesaid, be authorised and appointed, and they are hereby authorised and appointed, to make and adopt any further by-laws for the government of said bank,  [**27]  which they may think necessary and convenient, provided they are not contrary to the articles of association.

And the plaintiffs further say, that after the said act of assembly, and after the making of the said by-laws, to wit, on the thirtieth day of March, in the year eighteen hundred and five, the said Ralph, in pursuance of the said act of assembly, gave the bond in the declaration mentioned, with the condition therein contained, to wit, at the county aforesaid: And the plaintiffs further say, that the said Ralph continued to be cashier, and to act in the capacity of cashier of the Union Bank of Maryland, from the day last mentioned, until the twenty-fifth day of May, in the year eighteen hundred and nineteen, under and in pursuance of the said bond last mentioned, to wit, at the county aforesaid: And the plaintiffs further say, that at a session of the general assembly of Maryland, begun and held at the city of Annapolis, on the fourth day of December, in the year of our Lord, eighteen hundred and fifteen, and ending on the thirtieth day of January, in the year eighteen hundred and sixteen, among other things, a certain act of assembly was passed, entitled, An act declaring [**28]  the continuation and extension of the charters of the several banks therein mentioned; which said act of assembly, (1815, ch. 167,) follows in these words, to wit:

An Act declaring the continuation and extension of the Charters of the several Banks therein mentioned.

WHEREAS the President, Directors and Company, of the Bank of Baltimore; the President and Directors of the Union Bank of Maryland, [and various other banks therein named,] have transmitted to the executive of this state, certificates of their determination to agree to and accept of the renewal of their charters, upon the terms and conditions prescribed by an act, entitled, A supplement to the act, entitled, An act to incorporate a company to make a turnpike road leading to Cumberland, and for the extension of the charters of the several banks in the city of Baltimore, and for other purposes, passed at December session, one thousand eight hundred and thirteen: therefore, Be it enacted, by the General Assembly of Maryland, That the charters of, or the several acts of assembly incorporating the above mentioned banks, be and the same hereby are continued and extended to the first day of January, one thousand eight [**29]  hundred and thirty-five, and to the end of the session of the general assembly next thereafter; Provided, that nothing herein contained shall be construed to release the said banks from the compliance of the terms and conditions prescribed in the act of assembly, entitled, A supplement to the act, entitled, An act to incorporate a company to make a turnpike road leading to Cumberland, and for the extension of the charters of the several banks in the city of Baltimore, and for other purposes, passed at December session, eighteen hundred and thirteen, chapter one hundred and twenty-two.

1st. Breach--Embezzlement. "And the plaintiffs in fact say, that the said Ralph, not regarding his duty as cashier as aforesaid, but fraudulently intending and contriving to injure and deceive the plaintiffs, did, on various days and times, from the day of the date of the said writing obligatory until the twenty-seventh day of January, in the year eighteen hundred and sixteen, and from the said twenty-seventh day of January, in the year eighteen hundred and sixteen, until the sixth day of February, in the year eighteen hundred and seventeen, and from the said sixth day of February, in the year eighteen [**30]  hundred and seventeen, until the twenty-fifth day of May, in the year eighteen hundred and nineteen, privately, fraudulently, and in violation of his duty as cashier as aforesaid, use, embezzle, take out, and otherwise make away with the funds, monies and promissory notes for the payment of money, commonly called bank notes, to a great amount, to wit, to the amount of fifty thousand dollars, at the county aforesaid, belonging the plaintiffs, and wherewith the plaintiffs were chargeable, and which came to his, the said Ralph's hands, charge and custody, as cashier as aforesaid, and the same did unjustly detain and convert to his own use, whereby the plaintiffs were greatly prejudiced and damaged, to wit, to the value of fifty thousand dollars, to wit, at the county aforesaid, and this they, the plaintiffs, are ready to verify."

The 2d. assignment of breaches was like the first, except that it charged them to have been committed "on various days and times, from the day of the date of the said writing obligatory, until the 27th of January 1816."

The 3d. assignment of breaches was like the first, except that it charged them to have been committed "on various days and times, from [**31]  the day of the date of the said writing obligatory, until the 6th of February 1817."

The 4th. assignment of breaches was like the first, except that it charged them to have been committed "on various days and times, from the day of the date of the said writing obligatory, until the 25th of May 1819," without any other allegation of the time.

5th. Breach--Unlawful discountings. "And further breach by way of replication to the said plea by the defendant first above pleaded," &c. "the plaintiffs say, that the said Ralph, not regarding his duty as cashier as aforesaid, but fraudulently intending and contriving to injure and deceive the plaintiffs, did, on various days and times, from the day of the date of the said writing obligatory, until the twenty-seventh day of January, in the year eighteen hundred and sixteen, and from the twenty-seventh day of January, in the year eighteen hundred and sixteen, until the sixth day of February, in the year eighteen hundred and seventeen, and from the sixth day of February, in the year eighteen hundred and seventeen, until the twenty-fifth of May, in the year eighteen hundred and nineteen, privately, fraudulently, and in violation of his [**32]  duty as cashier as aforesaid, use the funds and monies belonging to the plaintiffs, and wherewith the plaintiffs were chargeable, and which came to the hands, charge and custody, of the said Ralph, as cashier as aforesaid, in secretly and unlawfully discounting notes for divers persons, and in appropriating the profits of such secret and unlawful discountings to his own use, to a great amount, to wit, to the amount of fifty thousand dollars, at the county aforesaid, whereby the plaintiffs were greatly prejudiced and damaged, to wit, to the value of fifty thousand dollars, to wit, at the county aforesaid; and this they, the plaintiffs, are ready to verify."

The 6th, 7th and 8th breaches, were assigned upon unlawful discountings as in the 5th breach, the time being laid as in the 2d, 3d and 4th assignments of breaches, and in that respect only differing from the 5th breach.

9th. Breach--Conspiracy, &c. False Entries. "And for assigning further breach by way of replication to the said plea by the defendant, first above pleaded, according," &c. "the plaintiffs say, that the said Ralph did, on various days and times, from the day of the date of the said writing obligatory, until [**33]  the twenty-seventh day of January, in the year eighteen hundred and sixteen, and from the said twenty-seventh day of January, in the year eighteen hundred and sixteen, until the sixth day of February, in the year eighteen hundred and seventeen, and from the said sixth day of February, in the year eighteen hundred and seventeen, until the twenty-fifth of May, in the year eighteen hundred and nineteen, to wit, at the county aforesaid, falsely and fraudulently combine, collude and conspire, with a certain Andrew Burt, teller of the said bank, and a certain Pierce L. Tanner, book-keeper in the said bank, falsely and fraudulently, and in violation of his duty as cashier as aforesaid, to lend out and give out, and in pursuance thereof, did fraudulently lend out and give out large sums of money belonging to the plaintiffs, and others, wherewith the plaintiffs were chargeable, and which came to the hands, charge and custody of the said Ralph, as cashier as aforesaid, and which he has not yet duly accounted for, paid, delivered or discharged himself from; amounting in all to a large sum of money, to wit, to the sum of fifty thousand dollars, to divers persons, and wrongfully and fraudulently [**34]  to appropriate, and then and there, in pursuance thereof, did fraudulently appropriate the funds and monies of the said bank to their own private purposes, whereby the funds and monies of the said bank were wasted, embezzled, misspent, and otherwise made way with, and unjustly detained by the said Ralph, and by other persons through his means, privity and procurement, to a great amount, to wit, to the amount of fifty thousand dollars, at the county aforesaid. And the plaintiffs in fact say, that neither the said Ralph, nor the said Robert Purviance, nor the said Daniel Delozier, nor the said Edward Johnson, nor Nicholas G. Ridgely, nor either nor any of them, nor either nor any of their heirs, executors or administrators, has or have yet, either made or given, or caused to be made or given unto the plaintiffs, or their successors, full satisfaction and recompense of and for such monies and funds belonging to the plaintiffs, or to other persons, where-with the plaintiffs are chargeable, so as aforesaid wasted, misspent, embezzled and otherwise made away with, and unjustly detained by the said Ralph, and by other persons through his means, privity or procurement, or any part thereof.  [**35]  And the plaintiffs further say, that the said Ralph, in order to conceal the said secret, and unlawful and fraudulent doings from the plaintiffs, at divers days and times after the date of the said writing obligatory, and while he continued cashier of said bank as aforesaid, made or caused, or knowingly permitted to be made, certain false and deceptions entries in the books of the said bank, in violation of his duty as aforesaid, whereby the plaintiffs were greatly damaged, to wit, to the value of fifty thousand dollars, to wit, at the county aforesaid; and this they, the plaintiffs, are ready to verify."

The 10th, 11th and 12th breaches, were assigned upon conspiracy with the clerks and false entries as in the 9th breach, the time being laid as in the 2d, 3d, and 4th assignments of breaches, and in that respect only, differing from the 9th breach.

13th. Breach--Over Drafts. "And for assigning further breach, by way of replication to the said plea, by the defendant first above pleaded, according to the form of the statute in such case made and provided, the plaintiffs say, that the said Ralph, not regarding his duty as cashier as aforesaid, but fraudulently intending and [**36]  contriving to injure and deceive the plaintiffs, did, at divers days and times, from the day of the date of the said writing obligatory, until the twenty-seventh day of January, in the year eighteen hundred and sixteen, and from the twenty-seventh day of January, in the year eighteen hundred and sixteen, until the sixth day of February, in the year eighteen hundred and seventeen, and from the said sixth day of February, in the year eighteen hundred and seventeen, until the twenty-fifth day of May, in the year eighteen hundred and nineteen, during which several times the said Ralph continued cashier of the said bank, frequently, and from time to time, wrongfully and unlawfully take out of said bank, divers sums of money, to wit, the sum of fifty thousand dollars, at the county aforesaid, by draughts and checks upon the said bank and otherwise, when he, the said Ralph, had not money deposited in the said bank, wherewith to pay the said draughts or checks, and that during the said time the said Ralph did not, from time to time, make and give unto the plaintiffs and their successors, a just and true account in writing of all such sum or sums of money, bills and notes, which did from time [**37]  to time come into his hands, charge and custody, of and belonging to the plaintiffs, or their successors, or to other person or persons, wherewith they, the plaintiffs or their successors, stood chargeable, whereby the plaintiffs suffered great damage, to wit, to the value of fifty thousand dollars, at the county aforesaid; and this they are ready to verify."

The 14th, 15th and 16th breaches were assigned upon over draughts as in the 13th breach, the time being laid as in the 2d, 3d and 4th assignments of breaches, and in that respect only, differing from the 13th breach.

17th. Breach--Embezzlement of a Check, 21st November, 1818. "And for assigning further breach, according," &c. "by way of replication to the said first plea, by the defendant, above pleaded, the plaintiffs say, that the said Ralph, with a view to injure and defraud the plaintiffs, and in violation of his duty as cashier as aforesaid, did, on the twenty-first day of November, in the year eighteen hundred and eighteen, to wit, at the county aforesaid, take from the funds and monies of the said bank, the sum of eight thousand three hundred and thirty dollars, and fraudulently charged or caused the same to be [**38]  charged to a certain William Dandridge, cashier of a certain bank, styled "The Bank of Virginia," which said sum of money was never forwarded to the said William Dandridge, or to any person for him, but by the said Ralph was fraudulently and wrongfully appropriated to his own private use, the said Ralph having charged or caused the same to be charged to the said William Dandridge the better to conceal his fraudulent and wrongful purpose from the plaintiffs, in breach and in violation of his duty as aforesaid, and to the great prejudice and damage of the plaintiffs, to wit, to the value of ten thousand dollars, at the county aforesaid; and this they are ready to verify."

18th. Breach--Another Embezzlement, 19th, March 1818. "And for assigning further breach, according," &c. "by way of replication to the said first plea by the defendant above pleaded, the plaintiffs say, that the said Ralph, fraudulently and unlawfully intending to injure and deceive the plaintiffs, and in violation of his duty as cashier as aforesaid, did, on the nineteenth day of March, in the year eighteen hundred and eighteen, take from the funds and monies of the said bank, the sum of seven thousand five hundred [**39]  and four dollars and eighty cents, and fraudulently and unjustly appropriated the same to his own private uses, which said sum of money the said Ralph, with a view to deceive and defraud the plaintiffs, did falsely charge or cause to be charged in the books of the said bank, as for a certain bill of exchange, alleged by him to have been bought by the plaintiffs of a certain John Gooding, and which the said Ralph pretended to have remitted to a certain Thomas Williamson, cashier of a certain bank in the borough of Norfolk, styled "A Branch of the Bank of Virginia;" which said bill of exchange, or pretended bill of exchange, the plaintiffs say, never was remitted to the said Thomas Williamson, but that the said Ralph falsely charged the same to the said Thomas Williamson, as a pretence to conceal the said fraudulent appropriation from the plaintiffs, in breach and violation of his duty as aforesaid, whereby the plaintiffs suffered great damage, to wit, to the value of ten thousand dollars, at the county aforesaid; and this they are ready to verify."

19th. Breach--False Statements. "And for assigning further breach, according," &c. "by way of replication, to the said plea by the [**40]  defendant first above pleaded, the plaintiffs say, that the said Ralph, with a view to deceive and defraud the plaintiffs, and in violation of his duty as aforesaid, did, at various days and times, from the day of the date of the said writing obligatory, until the twenty-seventh day of January, in the year eighteen hundred and sixteen, and from the said twenty-seventh day of January, in the year eighteen hundred and sixteen, until the sixth day of February, in the year eighteen hundred and seventeen, and from the said sixth day of February, in the year eighteen hundred and seventeen, until the twenty-fifth day of May, in the year eighteen hundred and nineteen, to wit, at the county aforesaid, knowingly make divers false statements of the condition of the said bank to the plaintiffs, frequently, wilfully and fraudulently charging or causing to be charged, divers individuals and banks, with large sums of money as due and owing to the plaintiffs, than the said individuals or banks in fact owed or were indebted to the plaintiffs, to wit, the sum of fifty thousand dollars, whereby the plaintiffs suffered great damage, to wit, to the value of fifty thousand dollars, at the county aforesaid;  [**41]  and this they are ready to verify."

The 20th, 21st and 22d breaches, were assigned upon false statements made of the condition of the bank, as in the 19th breach, the time being laid as in the 2d, 3d and 4th assignments of breaches, and in that respect only, differing from the 19th breach.

23d. Breach--Negligence. "And for assigning further breach by way of replication to the said plea by the defendant first above pleaded," &c. "the plaintiffs say, that the said Ralph, on various days and times since the day of the date of the said writing obligatory, and while it was in full force and virtue, and during the time the said Ralph was cashier as aforesaid, and before the commencement of this suit, did not carefully examine the conduct of the persons employed under him by the plaintiffs as it was his duty to have done, and as he was required by the said by-laws to have done, but to do so, omitted and neglected, by which said omission and neglect of the said Ralph, the plaintiffs were damaged to a great amount, to wit, to the amount of fifty thousand dollars, to wit, at the county aforesaid; and this they are ready to verify."

24th. Breach--Omitted to count the money, &c.  [**42]  "And for assigning further breach, according," &c. "by way of replication to the said plea by the defendant first above pleaded, the plaintiffs say, that the said Ralph, in violation of his duty as cashier as aforesaid, at various days and times, since the date of the writing obligatory, and whilst the same was in full force and virtue, and during the time the said Ralph was employed by the plaintiffs as cashier as aforesaid, and before the commencement of this action, did not, when it was his duty to have done so, count the money deposited in the vaults of the said bank, and compare the amount thereof with the balance of the cash account of the said bank, in the manner he ought to have done, but omitted and neglected so to do, whereby large sums of money, to the amount of fifty thousand dollars, wherewith the plaintiffs were chargeable, and which were in the charge and custody of the said Ralph as cashier as aforesaid, where wholly lost, and the plaintiffs greatly prejudiced and damaged, to wit, to the value of fifty thousand dollars, to wit, at the county aforesaid; and this they are ready to verify."

25th. Breach--Did not compare the books, &c. "And for assigning further breach [**43]  by way of replication to the said plea by the defendant first above pleaded, according," &c. "the plaintiffs say, that the said Ralph, in violation of his duty as cashier as aforesaid, at various times during the time he was cashier as aforesaid, and after the date of the said writing obligatory, and whilst the same continued in full force and virtue, and before the commencement of this action, altogether omitted and neglected to examine and compare the several books of account of the bank, which were kept by the clerks and subordinate agents of the said bank, under the superintendance and direction of the said Ralph, as cashier as aforesaid, as it was his duty to have done, whereby material errors, mistakes, false statements and disagreements arose and occurred therein, and large sums of money, wherewith the plaintiffs were chargeable, and which came to the hands, charge and custody of the said Ralph as cashier, were thereby wholly lost, to the amount of fifty thousand dollars, and the plaintiffs have thereby sustained damage to the value of fifty thousand dollars, to wit, at the county aforesaid; and this they are ready to verify."

26th. Breach--Did not examine cash account.  [**44]  "And for assigning further breach, by way of replication to the said plea, by the defendant first above pleaded, according," &c. "the plaintiffs say, that the said Ralph, in violation of his duty as cashier as aforesaid, during the time he was employed by the plaintiffs as cashier as aforesaid, and after the date of the said writing obligatory, and when the same continued in full force and virtue, and before the commencement of this suit, did not daily examine the settlement of the cash account, as it was his duty to have done; but wholly neglected and omitted to do so, whereby the plaintiffs have sustained great damage, to the amount and value of fifty thousand dollars, to wit, at the county aforesaid; and this they are ready to verify."

27th. Breach--Negligence in not reporting deficiencies. "And for assigning further breach, by way of replication to the said plea, by the defendant first above pleaded, according to the form of the statute in such case made and provided, the plaintiffs say, that after the date of the said writing obligatory, and while the same was in full force and virtue, and during the time the said Ralph was employed by the plaintiffs, as cashier as aforesaid,  [**45]  and before the commencement of this suit, at various days and times, there were large and improper deficiencies of the money in the vaults of the said bank, which the said Ralph as cashier as aforesaid, ought to have reported to the directors of the said bank, but which, on the contrary, in violation of his duty as cashier as aforesaid, he wholly omitted and neglected to do, by which omission and neglect the plaintiffs have sustained great damage, to wit, to the value of fifty thousand dollars, to wit, at the county aforesaid; and this the plaintiffs are ready to verify."

28th. Breach--Did not account, &c. "And for assigning further breach, by way of replication to the said plea, by the defendant first above pleaded, according," &c. "the plaintiffs say, that the said Ralph since the date of the said writing obligatory, and while the same continued in full force and virtue, and during the time he was employed as cashier as aforesaid, and before the commencement of this suit, did not, from time to time, make and give unto the plaintiffs, a just and true account in writing of all such sums of money, as from time to time came to his hands, charge and custody, as cashier as aforesaid,  [**46]  wherewith the plaintiffs were chargeable, as it was his duty to have done, but wholly omitted and neglected so to do, by which omissions and neglect, the plaintiffs have sustained great damage, to the amount and value of fifty thousand dollars, to wit, at the county aforesaid; and this they are ready to verify."

29th. Breach--Received money, &c. Did not pay, &c. "And for assigning further breach, according," &c. "by way of replication to the first plea by the defendant above pleaded, the plaintiffs say, that the said Ralph, since the date of the said writing obligatory, and while the same continued in full force and virtue, and during the time he was employed and acted as cashier as aforesaid, and before the commencement of this suit, did from time to time, receive into his charge and custody as cashier as aforesaid, divers large sums of money, bills and notes, to the amount and value of fifty thousand dollars, belonging to the plaintiffs, and wherewith they were chargeable, which the said Ralph has not since paid or delivered to the plaintiffs, or otherwise discharged himself from, as he ought to have done, but so to do, hath wholly omitted, neglected and refused; whereby the [**47]  plaintiffs have sustained great damage, to wit, to the value of fifty thousand dollars, to wit, at the county aforesaid; and this they are ready to verify."

30th. Breach--Combination to take money, &c. "And for assigning further breach, by way of replication to the said plea, by the defendant first above pleaded, according," &c. "the plaintiffs say, that the said Ralph, since the date of the said writing obligatory, and while the same continued in full force and virtue, and during the time he was employed and acted as cashier as aforesaid, to wit, at the county aforesaid, did falsely and fraudulently combine, collude and conspire with a certain Andrew Burt, teller of the said bank, and a certain Pierce L. Tanner, book-keeper in the said bank, falsely and fraudulently, and in violation of his duty as cashier as aforesaid, to take out of the said bank, a certain sum of money, to wit, the sum of eight thousand dollars, which had been before that time deposited by, and belonging to a certain Amos A. Williams, and in pursuance thereof did fraudulently take out of the said bank, the said sum of money, to wit, the sum of eight thousand dollars, which had been before that time deposited [**48]  as aforesaid, the said sum of money being money wherewith the plaintiffs were chargeable, and which came to the hands, charge and custody of the said Ralph as cashier as aforesaid, and which he has not yet duly accounted for, paid, delivered or discharged himself from, whereby the plaintiffs were greatly damaged, to wit, to the value of fifty thousand dollars, to wit, at the county aforesaid; and this they are ready to verify: wherefore they pray judgment, and their debt aforesaid, together with the damages on occasion of the detention thereof, to be adjudged to them, &c."

Replication to the second plea. This replication assigned similar breaches to those assigned under the replication to the first plea.

The plaintiffs demurred generally to the defendant's third, fourth, and fifth pleas, to which there were joinders in demurrer.

The defendant demurred generally to the 1st, 4th, 5th, 8th, 9th, 12th, 13th, 16th, 17th, 18th, 19th and 22d breaches assigned in the replications to the first and second pleas, to which there were joinders in demurrer. To the other breaches, viz. the 2d, 3d, 6th, 7th, 10th, 11th, 14th, 15th, 20th, 21st, 23d, 24th, 25th, 26th, 27th, 28th, 29th [**49]  and 30th, in the 1st and 2d replications of the plaintiffs to the 1st and 2d pleas, the defendant rejoined, denying the matter of each of the said breaches directly, concluding each rejoinder to the country, and on which issues of fact were joined.

The cause was then, on the prayer of the parties to amend their pleading, continued for several terms, and at the term when the cause was tried, the defendant asked and obtained further leave to amend his pleadings. He then filed the following plea, in addition to those before filed, viz. Sixth plea. "And the said Nicholas G. Ridgely, by leave of the court here, according to the form of the statute in such case made and provided, comes and further defends the wrong and injury when, &c. and says that the said plaintiffs their action aforesaid thereof against him, the said Nicholas, ought not to have or maintain, because he says that on or about the thirtieth day of March, in the year of our Lord eighteen hundred and five, to wit, at the county aforesaid, the said supposed writing obligatory was presented and shown by the said Ralph to the said Nicholas, and the said Nicholas was then and there requested by the said Ralph to join in the [**50]  said supposed writing obligatory as co-security with other securities, for him, the said Ralph; and the said Nicholas assenting to such request of the said Ralph, did then and there sign and seal the said supposed writing obligatory, and returned the same to the said Ralph, to be by him submitted to the said President and Directors of the Union Bank (the plaintiffs in this cause) for their approbation and acceptance; and if the said supposed writing obligatory should be approved and accepted by the plaintiffs, that then and in such case the said supposed writing obligatory was to be considered and delivered as the act and deed of him, the said Nicholas, and not otherwise. And the said Nicholas avers, that the said supposed writing obligatory never was approved and accepted by the plaintiffs by any act in their corporate capacity; and so the said Nicholas says that the said supposed writing obligatory is not his act and deed; and of this he puts himself upon the country, and so forth." This plea was verified by the oath of the defendant. The plaintiffs joined in issue.

The county court rendered judgment for the defendant on the demurrers to the 1st, 4th, 5th, 8th, 9th, 12th, 13th,  [**51]  16th, 17th, 18th, 19th and 22d breaches to the 1st and 2d pleas; and rendered judgment for the plaintiffs on the demurrers to 3d, 4th and 5th pleas of the defendant. The plaintiffs then suggested similar breaches to the defendant's 3d, 4th and 5th pleas as they had assigned to the 1st and 2d pleas. Upon the issues joined upon the several rejoinders of the defendant to the several breaches assigned by the plaintiffs to the first and second pleas, and to the issue joined to the sixth plea, the jury found for the defendant, although in the record the verdicts were informally stated by the clerk, and which by consent of the parties were amended. The jury also returned the following inquisition as to the breaches suggested to the 3d, 4th and 5th pleas, viz. "We the undersigned jurors, being duly empannelled, under and by virtue of an order of this court, for inquiring at bar, to assess the damages sustained by the plaintiffs by reason of any breaches assigned and suggested by them in this cause, upon which issues in fact were not joined, and verdict given for the defendant, and being duly sworn thereto, in open court, having made inquiry thereof, do, upon our corporal oaths, find as follows;  [**52]  that is to say, upon the second breach, the third, sixth, seventh, tenth, eleventh, fourteenth, fifteenth, twentieth, twenty-first, twenty-third, twenty-fourth, twenty-fifth, twenty-sixth, twenty-seventh, twenty-eighth, twenty-ninth and thirtieth breach, assigned and suggested by the plaintiffs under the third plea; and upon the same breaches, numbered as aforesaid, and assigned and suggested by the plaintiffs under the fourth plea; and upon the same breaches, numbered as aforesaid, and assigned and suggested by the plaintiffs under the fifth plea, that the plaintiffs have sustained and proved damage to have been sustained by them, and under the direction of the court, the jury find for the plaintiffs, and they assess the damages of the plaintiffs to one cent, and no more, on each breach above mentioned. In witness whereof, the undersigned jurors have to this inquisition set their hands and seals, in open court, this twelfth day of May, in the year of our Lord one thousand eight hundred and twenty-four." Signed and sealed by the jurors. The plaintiffs then moved the court to order judgment to be entered upon the said inquisition. Which motion the court overruled, and directed judgment [**53]  to be entered for the defendant.

Bills of Exceptions. 1. The defendant, by his counsel, just previous to the swearing of the jury, in the above case, at this present term, asked the leave of the court to amend his pleadings by pleading and filing the following plea, numbered 6. [Which was a copy of the sixth plea heretofore inserted.] To the making which amendment, the plaintiffs, by their counsel, objected, because said plea came too late, and was incompatible and inconsistent with the defendant's other pleas, and against the eleventh and thirty-third of the standing rules of this court, viz.

"Rule XI. The 20th day of February, and the 1st day of September, shall be the rule days; and whenever a rule is laid to declare or to plead, the declarations and pleadings are to be filed on or before the rule day; when a declaration, or any part of the pleadings is filed on or before the rule day, in pursuance of a rule previously laid, the adverse party shall be bound to answer the same, and to file the pleadings necessarily arising in succession, on or before the second day of the next succeeding term, either party failing to comply with this rule, may have judgment of non pros.  [**54]  or by default, entered up against him, whenever the action is called, upon the first going over the docket; but the general issue plea may be pleaded by a defendant at any time before judgment by default is entered against him, although he hath not pleaded before the rule day; this, however, will never be considered as a reason to delay the trial."

"Rule XXXIII. No incompatible pleas shall be received; as non assumpsit and tender; non assumpsit and release; non assumpsit and infancy; liberum tenementum and justification; nil debet and nil habuit in tenementis; not guilty and liberum tenementum; not guilty and license; non est factum and payment or set off, and non est factum and release." But the Court, [Archer, Ch. J. and Hanson and Ward, A. J.] overruled the objection, and gave the defendant leave to amend his pleadings in the manner aforesaid, by filing said plea. The plaintiffs excepted.

2. On the trial of this cause, the plaintiffs to support the issues on their part, produced as a witness, Henry Payson, to prove that he was president of the Union Bank of Maryland from the 27th April 1812, until the 27th May 1819, and thereafter; and that Ralph Higginbothom was acting [**55]  as cashier of said bank from its first organization, until the 27th May 1819; that a certain book now shown to him with the words "by-laws," printed in gilt letters on the back thereof, and the same words on the 1st page thereof, which it is agreed shall be part of this bill of exceptions, was, during the time he was president of said bank, one of the books of the bank, and that the rules therein contained (and which it is admitted are truly transcribed in the plaintiffs' replication,) were always considered by the directors and officers of the bank, as the by-laws of the bank, and under which the said directors and officers always acted, and that he as president of the bank was the depository of the said book, and that said by-laws in said book, were in the handwriting of the said Higginbothom; and that said Payson (the witness,) was summoned as a witness by both parties, and examined without objection, by plaintiffs, and cross examined by defendant at a former trial of this cause, at March term of this court, 1822, and that, to the best of his recollection, he stated at said former trial, that he, the witness was, during all the time aforesaid, owner of stock in said bank; and the [**56]  said witness being now duly sworn, stated that he is now a stockholder in said bank, and has no recollection, that when he was examined as above stated, at the former trial of this cause, he was then examined as to the fact of his being a stockholder in said bank, but that he has every reason to believe that the defendant and his counsel then knew that he was a director and stockholder in the said bank; and thereupon the defendant, by his counsel objected to the said witness as incompetent to prove any of the matters aforesaid, except that he is a stockholder, and stated himself on his examination at the said former trial, to have been then a stockholder. Which objection the court sustained, and excluded the witness. The plaintiffs excepted.

3. At the trial of this cause, the plaintiffs, to prove the issue on their part, offered in evidence--First. A paper entitled "Articles of Association of the Union Bank of Maryland," which paper it is admitted by the defendant, contains the original articles of association, under which the bank transacted business prior to the passage of the act of incorporation, and which paper it is agreed shall be herewith filed as a part of this exception.  [**57]  Second. The plaintiffs produced a book, on the back of which is printed in gilded letters, the words "by-laws," which book is herewith filed, and is to be considered a part of this exception; and the plaintiffs offered in evidence that the said book is one of their books, and is the one in which the proceedings of the President and Directors of the Union Bank were entered, so far as the same were reduced to writing, and contains the proceedings as aforesaid, so far as the same were reduced to writing, from the time of the original association until the charter was obtained, and also after the charter was obtained until the year eighteen hundred and nineteen; that there is no other book in which the proceedings of the president and directors as aforesaid, were entered during the said period aforesaid, and no other writing or memorandum of their proceedings when they were assembled as the president and directors as aforesaid. Third. The plaintiffs offered to read in evidence from the said book, a writing headed the by-laws, under which, as the plaintiffs allege, the said president and directors acted. Fourth. The plaintiffs offered to read from the said book a resolution passed by the [**58]  board of directors of the original association, on the 27th of September 1804, "That notice be given in the public newspapers in this city, that a petition would be presented to the general assembly of Maryland, at their next session, for a law to incorporate the stockholders of the said institution." Fifth. The plaintiffs offered in evidence the act of incorporation, and the several other acts of assembly, relating to the said incorporation, duly authenticated, copies of which are herewith filed, and are to be considered as part of this exception by agreement of parties. Sixth. The plaintiffs offered to read from the said book, entitled "by-laws," the following entry: "Thursday, 24th January, 1805. At a meeting of the president and directors this day, the members on behalf of the state being present, the charter, so far as it relates to the oath of officers, being read, it was resolved, That the president, each director, and cashier, take the following oath or affirmation, as the case may be--'I    , do swear or affirm, that I will faithfully, impartially, diligently and honestly, execute the duties of a director, agreeably to the provisions of law, and the trust reposed in me,  [**59]  to the best of my skill and judgment.' This being done, they proceeded to vote on the propriety of advertising," &c. which said entry the plaintiffs gave in evidence, was in the handwriting of the said Ralph Higginbothom. Seventh. The plaintiffs offered to read an entry from the said book before mentioned, as follows: "Whereas by an act to incorporate the stockholders in the Union Bank of Maryland, it is, among other things enacted, that an election for sixteen directors, to conduct the affairs of the said bank, shall be annually held on the first Monday in July. And whereas the said first Monday in July may sometimes fall on the fourth of said month, on which the bank will be shut, agreeably to the provisions of the fourth article of the by-laws, ordained and passed for the regulation and government of the said corporation," &c. Eighth. The plaintiffs offered to read from the said book, an entry made on the 30th of August 1819, in the following words and letters, "S. Etting, D. Winchester and A. Ellicott, are appointed a committee to revise the by-laws." Ninth. The plaintiffs offered in evidence the by-laws, as revised, a copy of which is herewith filed and agreed to be considered [**60]  as a part of this exception. Tenth. The plaintiffs offered in evidence the bond in the declaration mentioned, which it is admitted was signed and sealed by the defendant in this cause. The plaintiffs, further to prove the issues on their part, produced John Hollins, a competent witness, who gave in evidence to the jury, that he was a member of the corporation of the Union Bank, at the time of its incorporation, and had been so under the articles of association; that he continued to be a member of said corporation for several years after the act of incorporation. The said witness also gave in evidence, that upon inspection of the book marked "by-laws," as produced in court, he knew the said "by-laws," or regulations entitled "by-laws," and many of the other minutes written therein for a long period after the act of incorporation, as well as before the said act from the commencement of the association, to be in the hand-writing of Ralph Higginbothom, who was at the time of the said writing, and afterwards, the cashier of the said bank; the said witness also gave in evidence, that he believed the said writings entitled, "by-laws," as aforesaid, to be the true by-laws of the plaintiffs,  [**61]  and adopted and used by them, although the witness did not know that he had ever before seen the book in which they were written, his memory as to this matter being too uncertain to identify the said book; and the said witness being interrogated to each "by-law" separately, as written and numbered in the said book, gave in evidence, that while he was a director in the said bank, it was the usage of the said bank to act according to the first article of the said by-laws, whether the bank acted agreeably to the second article he did not remember. That the bank practised conformably to the 3d article, also to the 4th. To the 5th article of the by-laws, the witness gave in evidence that the president and directors for the first five or six months after their association, and before the act of incorporation, met but once a week, but at the end of that time, the said president and directors met always twice a week, and this article was then complied with. That the bank acted according to the 6th article, and also the 7th and 8th. The 9th article the witness could not say how far it was complied with, as it would have required a person to be in the bank to know it; of the following articles [**62]  up to the 20th, the witness gave in evidence, it was the usage of the bank to act according to them; of the 20th article he did not remember; the 21st article was a customary rule; the 22d article he did not remember that it was complied with, but that it was understood by the directors to have been a part of their duty; the 23d article he did not recollect; the 24th and 25th were according to the usage of the bank; and to the 26th, the witness stated that he knew of no revision of the by-laws. The witness further gave in evidence, that he never heard of any other by-laws, than those which had been read. The plaintiffs further produced Solomon Birckhead, a legal and competent witness, who gave in evidence that he was formerly a member of the association, and one of the first board of directors, and that he remembered there were by-laws in the said bank, although he could not undertake to identify them. The plaintiffs also produced Stewart Brown, a legal, competent witness in the cause, who gave in evidence, that he also had been a director in the said bank, for one or two years, a short time after its incorporation, and had also been a member of the association. The witness further [**63]  stated that he was not acquainted with the by-laws produced in court, his memory not being sufficiently strong to enable him to recollect, but upon hearing them read, he gave in evidence that the direction and government of the bank, was in general conformable to these regulations, but never saw the rules now produced, or any other. The plaintiffs further offered James A. Buchanan, a legal and competent witness, who gave in evidence that he had been a member of the original association, and also of the bank, after its incorporation, and was for some time a director; that he had no recollection that he had ever seen the by-laws, though he presumed he had seen them as a director. Being examined to the by-laws separately, the witness gave in evidence, that with the exception of the articles Nos. 1, 2, 10, 11, 12, 13, 20, 23 and 26, of which he had no distinct recollection, he remembered that the bank was usually regulated according to the system prescribed in the said by-laws, and particularly in regard to the cashier's duty, as contained in the 19th article; he remembers that such regulations were required of him, and in regard to the 25th article, he remembered such a rule, although [**64]  he knew nothing of its execution; the witness further gave in evidence, that he knew of no other regulations of the bank, than those read, and that in general, he believed them to have been complied with, yet that they were not rigidly observed, either by the directors or officers. The plaintiffs further produced George T. Dunbar, a legal and competent witness in the cause, who gave in evidence that he was a clerk in the bank of the plaintiffs, at the time of the act of incorporation; that at that time the said Ralph Higginbothom was the cashier of the bank of the plaintiffs, and the said writings, entitled, "by-laws," are in the hand-writing of the said Ralph. And also that the minutes in the said book, from the commencement of the institution, until the act of incorporation, and from that time for several years afterwards, are in the handwriting of the said Ralph, and the said minutes were kept by the said Ralph, who was considered in the bank the proper officer to write the said minutes. The said witness also gave in evidence, that while he remained in the bank, the said Ralph was in the habit generally of performing the duties, though not with regularity, assigned to the cashier [**65]  by the 19th article of the by-laws. The plaintiffs produced Thomas N. Gouldsmith, a legal and competent witness in the cause, who gave in evidence that he had been a clerk in the said bank for the last ten or twelve years, during the greater part of which time the said Ralph was cashier of the said bank; that in the book, entitled, "by-laws," many of the minutes, and particularly those purporting to be during the first five or six years of the charter, are in the handwriting of the said Ralph, and that the said writings, entitled, "by-laws," are all in the handwriting of the said Ralph. The witness further gave in evidence that said Ralph was in the habit of performing the duties which are enumerated as duties of the cashier in the 19th article of said by-laws, or that he professed to perform them, though it was done with irregularity. The plaintiffs also produced George Taylor, a legal and competent witness, who gave in evidence that he was a director in 1817 or 1818--that when he was elected a director, he inquired at the bank for the by-laws, and that a book or paper containing by-laws, similar in purport to those which were produced by the plaintiffs in court, and read to the other [**66]  witnesses, were delivered to him by some officer of the band; that he remembered them, because the board acted according to them while he was a director, though they were not very rigidly observed; he remembered them also from the fact, that discussions as to what were the rules in particular cases would sometimes take place at the board, and that such questions would be decided by the older members, who were more conversant with the rules than himself, in a manner agreeable to the rules he had heard read, but no book or paper containing the by-laws was ever produced; he did not particularly recollect the book in court, so as to be able to identify it. The witness further stated, that he was in the bank when the new by-laws were adopted in 1819; that he was present at the meeting when the new by-laws were adopted, and that these old ones, now in court, were the by-laws which were revised by the board; that the bank, as long as he was a director, and until the new by-laws were adopted, corresponded in its regulations and government, with the system contained in the by-laws in the book now offered in evidence, and that the witness never heard of two sets of by-laws previous to the revision,  [**67]  as above mentioned. The plaintiffs further produced Jonathan Pinkney, a legal and competent witness in the cause, who gave in evidence, that he is, at this time, the cashier of the plaintiffs, and had been so from the year 1819. That when he came into the bank he found the book, entitled, "By-Laws," among the other books of the corporation, and that the said book had the reputation in the bank of being the former by-laws and minutes of the corporation, and that the new by-laws were adopted a short time before he became the cashier of the plaintiffs; the said witness also gave in evidence that the said by-laws, as well as the minutes for several years, were in the proper hand-writing of the said Ralph Higginbothom, the former cashier. The plaintiffs further gave in evidence by Elias Glenn, Esquire, a competent witness, that he was a director in the Union Bank for two years, and thinks he was so between the years 1806 and 1811; knows that certain by-laws were handed to him when he was sworn in as a director, or about that time, and that he read them, but the contents of them he does not recollect; he thinks that when they were shown to him, some of the other directors told him the bank [**68]  had a set of by-laws, and that it would be necessary for witness to read them, as he was now a director; witness is not sure that the by-laws he read were in a printed or written form; he never heard of but one set of by-laws, in said bank; does not know whether the by-laws contained in the book produced by the plaintiffs, entitled, "By-Laws," are the same as those he read, some of them, as far as he has now read them, which is to the seventh in said book, were exactly the same as the usage of the bank, and some were not, but he does not say that the said by-laws in said book, were or were not the rules of the bank. He says, that so far as the word "week," at the end of the fourth line of the 5th article of the by-laws in said book the usage of the bank was in exact conformity with said rule, but that the usage of the bank was directly contrary to that part of the said articles, which directs that the discounts should not be paid till after 12 o'clock of the day on which the discount was made; that they were paid out at any time after they were made, and passed to the credit of the persons for whom they were made; he does not think the board ever sat so long as 12 o'clock at their [**69]  discount meetings. Witness has himself often drawn out his discounts before 12 o'clock, as well as those which were made for himself, as upon the checks of other persons, for whose use discounts were made; that he has had a conversation lately with Mr. Etting, one of the directors of the bank at the present time, and one of the present plaintiffs, and that Mr. Etting told him, in that conversation, that it has ever been the usage of the bank to pay out discounts whenever they were applied for without regard to time; witness does not undertake to say whether such a rule as that discounts should not be paid out till after 12 o'clock existed or not. The defendants then offered in evidence, from the minutes in the said book of the proceedings of the plaintiffs, that there is no entry or memorandum of the adoption of the writing above produced, as the by-laws of the said bank by the vote of the said corporation, or of the president and directors thereof; that the proceedings in 1819, upon the subject of the revision of the by-laws, were after the dismissal of the said Ralph Higginbothom from employment in the said bank, and also, that the minutes in the said book contain no memorandum of [**70]  the appointment of the said Ralph as cashier of the said bank after it was incorporated. And thereupon the defendant, by his counsel, objected to the reading of the said writing, headed "by-laws," produced as above mentioned, as and for the by-laws of the said corporation, and as prescribing, among other things, the duties of the said Ralph, while he was in the employment of the said bank; and the court were of opinion that the said writing could not be read in evidence for the purposes aforesaid. The plaintiffs excepted.

4. The plaintiffs, in addition to the matters and things contained in the preceding bills of exceptions for the plaintiffs, further produced in evidence the bond and condition, of which oyer is given in this cause, as set forth in the pleadings; and also gave in evidence, that the defendant signed and sealed the same; and further gave in evidence by Jonathan Pinkney, the present cashier of the said bank, that when he entered upon the said office on the 16th November, 1819, he found the said bond, as now produced, deposited among the archives and valuable original papers and documents of the said bank, in an iron chest in the banking-house of the said corporation,  [**71]  together with other papers purporting to be the bonds of the tellers, book-keepers, and other inferior officers of the said bank, and that this bond had ever since so remained in possession of the said bank, until it was delivered out to the attorney of said bank by the witness, as cashier thereof, to be used upon the trial of this cause. Whereupon the court inquired of the plaintiffs' counsel whether there was any evidence that the bond, upon which this suit was brought, had ever been received as satisfactory by the President and Directors of the Union Bank other than what is stated in this and the preceding exceptions, and being answered by the plaintiffs' counsel in the negative, instructed the jury that the cashier, before he entered upon the duties of his office, was required by the act of assembly to give a bond, with two or more sureties to the satisfaction of the president and directors, for his good behaviour, and there was no legal evidence of any bond having been given to their satisfaction, which could bind the sureties in this case; and they must therefore find for the defendant on the issue joined on the sixth plea. The plaintiffs excepted.

5. Upon the evidence contained [**72]  in the preceding bills of exceptions, the plaintiffs, by their counsel, prayed the court to instruct the jury, 1st. That the jury, in the absence of all other evidence respecting the execution of the said bond, were at liberty to infer from the foregoing evidence that the said bond was duly executed and delivered by the said defendant, and duly accepted by the said plaintiffs, notwithstanding no written evidence of the acceptance thereof by the said corporation, or its board of directors, was adduced by the plaintiffs at this trial, and that a written acceptance thereof was not necessary to give validity to the bond. 2. That under the issue joined upon the sixth plea of the defendant, the production of the said bond by the plaintiffs, and their possession thereof, together with the proof and admission that the defendant had signed and sealed the same as aforesaid, were sufficient prima facie evidence of the due execution, delivery and acceptance thereof in law, and that the burden of proof of the non-acceptance thereof, or of the other special matter set forth in the sixth plea, lies upon the defendant; and in the absence of all proof on the part of the defendant touching the matters [**73]  set forth in the said sixth plea, the jury ought, on the issue joined upon that plea, to find a verdict for the plaintiffs. Both of which directions the court refused to give; but were of opinion, and so instructed the jury, that the cashier mentioned in said bond, was required by the act of assembly to give a bond with two or more sureties, to the satisfaction of the president and directors of the bank, for his good behaviour, and there was no legal evidence of any bond having been given to their satisfaction which could bind the surety in this case, and they must therefore find a verdict for the defendant on the issue joined on the said sixth plea. The plaintiffs excepted.

6. At the trial of this cause, and after the opinion and direction had been given by the court, as stated in the fourth and fifth bills of exceptions of the plaintiffs, in order to prove the breaches and damages assigned and suggested in this cause, in addition to the testimony stated in the preceding exceptions, offered to give in evidence the several original corporation books of the plaintiffs, called offering books, legers, scratchers, cash books and statement books, which purported to contain as well [**74]  the accounts of the said bank with its customers, as also statements of the affairs, property, debts and credits, of the said corporation, during the whole period between the 20th of January 1805, and the 6th of February 1817, and to prove that the said books were kept by a certain Pierce L. Tanner, and a certain Jacob Hart, as officers of the said corporation, during the time aforesaid, and to prove that the said Pierce L. Tanner was resident out of the jurisdiction of this court in parts unknown, and that the said Jacob Hart was dead, and that the several entries contained in the said books, were in the proper handwriting of the said Tanner and Hart, and were kept under the superintendance and direction of the said Ralph Higginbothom. And also offered to prove by the said books, that divers false entries, mistakes, omissions, irregularities and material disagreements, occurred therein by the neglect and fraud of the said Ralph Higginbothom, and the said Pierce L. Tanner, and that there were great deficiencies in the funds of the bank, by reason whereof the plaintiffs had sustained great losses. Whereupon the defendant, by his counsel, prayed the opinion of the court to the jury,  [**75]  that upon the evidence and directions in the preceding exceptions, the evidence offered as stated in this exception, is not admissible for the purpose of proving the plaintiffs entitled to damages either on the issues joined or on the breaches suggested; which opinion the court gave, and accordingly rejected the evidence. The plaintiffs excepted; and the judgment being for the defendant, the plaintiffs appealed to this court.  

DISPOSITION:
JUDGMENT REVERSED, AND PROCEDENDO AWARDED.  

HEADNOTES:

A plea of special non est factum is a general issue plea, and like other general issue pleas need not be pleaded before the rule day, but may be received when the cause is called up for trial.

When an amendment of the pleadings is made at the trial under the act of 1809, ch. 153, s. 1, time is to be given during the term, to the adverse party to prepare to support his case; yet the cause is not, therefore, to be continued, unless the court shall be satisfied that a continuance is necessary.

Whatever apparent inconsistency there may be between the pleas of general performance and non est factum, it is the settled practice under the statute, 4 Ann, ch. 16, to receive them; for defendant's are not confined to pleas strictly consistent.

The only pleas now disallowed on the mere ground of inconsistency are the general issue and tender, and the reason is, that one goes to deny the existence of any, while the other admits some cause of action.

The discretion vested in the courts by the act of 1809, ch. 153, to order and allow amendments to be made in all proceedings whatever, before verdict, so as to bring the merits of the question between the parties fairly to trial, is not a capricious but a sound legal discretion; to the proper exercise of which the party claiming it is entitled, and from which, he cannot properly be debarred by any rule, that is the mere creature of the court.

It is a general rule of evidence that in a suit brought by a bank, one who is a stockholder and interested in the event of the suit is not a competent witness in behalf of the institution, but that rule is not without exception--as where an interested corporator is called upon to prove himself either to be or to have been the depository of the muniments of his corporation.

An interested corporator, however, is not a competent witness to prove, that a book continued to be one of the muniments of his corporation after he had ceased to be the depository thereof.

The adoption of a code of by-laws by a corporation need not necessarily be by writing, but may be proved as well by the acts and uniform course of proceedings of such corporation, as by an entry or memorandum in writing.

Where a plaintiff in his replication sets out a code of by-laws of a corporation, which prescribe the duties of an officer of such corporation, and then assigns as a breach a violation of duties so prescribed, on which breach issue is tendered by the defendant and joined by the plaintiff, such by-laws are virtually admitted by the defendant in his pleadings.

It is a general principle of pleading, that where a plea produces a direct affirmative and negative by denying the allegation in the declaration, it should conclude to the country, whether the affirmative of the issue is held by the plaintiff or defendant; and that the proof of the affirmative rests on him who asserts it.

When new matter is introduced on either side, the pleading ought to conclude with a verification.

In the application of these rules, the plea of general non est factum in an action of debt on a bond, which by denying the allegation in the declaration, that it is the writing obligatory of the defendant, makes the issue between the parties, concludes to the country, and throws the whole proof of the execution of the bond, including the delivery, upon the plaintiff, who in that case asserts the affirmative.

Under an issue joined upon a plea of general non est factum, the defendant may give in evidence any thing which goes to show that the instrument of writing was originally void at common law--as lunacy, fraud, coverture, &c. or that it had become void subsequent to its execution--as by erasure, alterations, &c. for that plea puts in issue as well its continuance as a deed, as its execution.

A defendant may plead specially any matter which he might give in evidence under the plea of general non est factum; but if he chooses to do so, being new matter, he must do it with a verification, and holding the affirmative, he draws the burthen of proof upon himself.

If a defendant seeks to avoid a bond for duress, infancy, usury, &c. which cannot be given in evidence under the general issue, (the bond not being therefore void, but voidable,) he must plead such new special matter with a verification, and the proof lies upon him. In every such case the issue is upon the matter specially alleged in the plea.

The defendant may give in evidence, under the plea of general non est factum, that the instrument of writing was delivered as an escrow on a condition not performed; and it is settled he may plead it specially, and that the proper conclusion to that plea is to the country; because it is a special negative to the affirmative in the declaration--the allegation in the declaration that it is the writing obligatory of the defendant, including the allegation of the delivery of it as a deed, and it is this conclusion to the country, that raises the question, whether the proof is on the plaintiff or defendant.

Where the delivery of a deed as an escrow is pleaded, the issue is upon that special matter, which being alleged and relied upon by the defendant to show that is not his deed, the proof of that allegation rests upon him; and if there be no proof on the part of the defendant, the possession of the instrument by the plaintiff, is prima facie evidence of the delivery as a deed, and is sufficient to sustain the issue on his part.

If the delivery as an escrow be proved on the part of the defendant, as alleged in the plea, the proof of the performance of the condition lies upon the plaintiff, where the affirmative is with him.

And where the defendant pleaded that he signed the supposed writing obligatory at the request of H, and as his surety, and returned the same to H, to be by him submitted to the obligees, (a corporation,) for their approbation and acceptance; and if the same should be approved and accepted by them, that then the same was to be considered and delivered as the act and deed of the defendant; and that the same never was approved of by the said obligees by any act in their corporate capacity, and so it was not his deed; in the absence of all evidence on the part of the defendant, the possession and production of the instrument of writing by the obligees would be sufficient prima facie evidence of the delivery and acceptance, to entitle them to a verdict, on the issue joined on such a plea.

It seems to have been formerly held, that a corporation aggregate could only act by its common seal--could do nothing without deed; but that doctrine is now no where sanctioned as a universal proposition.

The acts of corporations may now be evidenced by writing without seal.

The assent and acts of corporations, like those of individuals, not reduced to writing, may be inferred from other facts and circumstances, without a violation of any known rule of evidence.

A corporation may be bound by the acts of its duly authorised agent, although such acts are not reduced to writing.

Where the charter of a bank required its cashier to give bond, with two or more sureties, to the satisfaction of the president and directors, a bond executed by the cashier, and others, as his sureties, reciting his appointment as cashier, was found deposited among the archives and valuable original papers and documents of the bank, in an iron chest in the banking house of the corporation, the cashier continued to act in that capacity for years after the date of the bond, without any re-appointment. In an action on such bond by the corporation--Held, that in the absence of all testimony respecting the execution of the bond, the jury ought to be permitted to infer that it was duly executed and delivered by the defendant, and accepted by the plaintiffs, which acceptance necessarily included the approbation of the board of directors, or their satisfaction with the sureties, and was not necessary to be in writing.

Where the pleadings in a cause put in issue the facts that certain false and deceptious entries were made in the books of a banking corporation by its clerks, with the connivance of the cashier, on proof that such books were kept by the clerks of such bank, and such entries were in their handwriting, the books are evidence to show what entries were in them, which can only be done by their production, and are proper to lay a foundation for other testimony to show fraud, malconduct, neglect, or violation of duty by such cashier.

Where by the charter of a bank the directors were to be chosen annually, and they "for the time being, have power to appoint a cashier, and such other officers under them, as may be necessary for executing the business of said corporation," a cashier so appointed is an officer of the corporation, the duration of whose office, in the absence of any express limitation, is limited only by the duration of the charter, subject to the removal of the incumbent by the directors, as occasion might require, and is not necessarily an annual officer.

In construing a bond the court must look to the intention of the parties at the time it was executed, and the contract must be expounded as the law was, when the contract was made.

Where an act of incorporation, under which a bond was taken to secure the good conduct of one of the officers of the corporation, was limited in its duration to a certain period, the bond must have the same limitation; because the parties, looking to that act, it would seem to be very clear that no responsibility was contemplated beyond the period of its specified existence. The extension of the charter beyond the period of its first limitation by legislative authority, does not enter into the contract, and cannot enlarge it.

The day laid in pleadings is frequently not material, as in trespass, where the injury charged may be proved to have been committed on a day before or after the time stated in the declaration; provided it appears to have been before the action was brought.

In assigning the breaches of the condition of a bond, which was taken and intended as a security for a limited period, the time of the commission of the breach, is so far material, that it must be laid to be within such period; and an allegation of a breach beyond that period, renders the whole assignment defective, and bad on demurrer, as it then appears on the record that the defendant is charged beyond his legal responsibility.  

COUNSEL:
Mitchell, and Kennedy, for the Appellants, contended,

1. That the liability of the defendant on the bond extended to a period beyond the original term to which it was enacted that the charter should continue.

2. That the execution and delivery of the bond were sufficiently proved on the part of the plaintiffs to hold the defendant liable in this action.

3. That the defendant's sixth plea ought not to have been accepted. 1. Because it came too late and by surprise on the plaintiffs. 2. Because it is incompatible with the other pleas in the cause.

4. That the court below erred in taking from the jury, as stated in the plaintiffs' 4th and 5th bills of exceptions, the question of the due delivery,  [**76]  execution and acceptance of the bond; and also that the court erred in refusing the two prayers of the plaintiffs contained in their 5th bill of exceptions, and in the opinion and instructions given by them as stated in said 5th bill of exceptions.

5. That if acceptance of the bond, on the part of the plaintiffs, were necessary, that fact was sufficiently proved by their possession of the bond and the other evidence offered in the cause, and ought to have been left to the jury; and that the court erred consequently in the opinion expressed in the plaintiffs' 4th bill of exceptions.

6. That it was not necessary that the bond should be accepted in writing.

7. That the by-laws of the bank were sufficiently proved by the evidence in the cause.

8. That the court erred in rejecting the evidence, as stated to have been offered, in the plaintiffs' 6th bill of exceptions, the said evidence being proper to have gone to the jury to prove the breaches assigned and suggested by the plaintiffs.

9. That the court erred in rejecting the testimony of Henry Payson, and in sustaining the objection made by the defendant's counsel as set forth in the plaintiffs' 2d bill of exceptions.  [**77]  

10. That the court were in error in sustaining the demurrers by the defendant to the breaches assigned under the 1st and 2d pleas; because all the said breaches were good as far as they charged the defendant with defaults from the date of the bond.

11. That a judgment according to the prayer of the plaintiffs ought to have been entered in their favour upon the inquisition by the jury; and that the judgment entered in favour of the defendant was erroneous.

1. As to the first bill of exceptions. The sixth plea ought not to have been received--considering the other pleadings and the time when offered. It was inconsistent with the first plea of performance, and the second plea of payment. The cases in the books, will sufficiently show the court that these pleas are deemed incompatible in the English practice, and never allowed there, unless by special application to the court within the first rule-day for pleading, so that the parties may have early notice and come fully prepared to try both issues. But what was the case here? The cause had been at issue upon all the pleadings more than three years. The first rule to plead had expired as early as the 1st of September, 1819,  [**78]  and the leave to amend had expired on the 20th of February, 1824. The XI. rule inhibited all special pleas after the rule-day had expired, and the XXXIII. rule had expressly enacted as the law of the court, that the pleas of non est factum and payment, set off and release, should not stand together. The defendant has sworn to this plea--of course he was always apprised from the commencement of the suit, (March term, 1819,) of this defence. With this knowledge he lies by five years, until 8th May, 1824, and at the moment of trial, more than thirty days after the commencement of that term, and after all the witnesses had been summoned and were attending, and just as the jury were about taking the oath, he comes down upon the plaintiffs with a new plea, requiring a new replication and new proof, and other witnesses. It will be observed that the replications to the 1st and 2d pleas allege the due execution of the bond--the appointment of the cashier, and his acting under the bond; and issue is joined on the breach of his duties alone--so that under the issues already joined the execution of the bond was admitted. The standing rules of the court also further guaranteed the plaintiffs against [**79]  surprise from any special plea at that time, and especially against a plea contradicting what was already admitted upon the record. And yet the court, without rescinding those rules, and with no special reason assigned for dispensing with them, received this new plea and compelled the plaintiffs to reply instanter and proceed to trial on this new issue, or to submit to a further delay of six months, after the suit had been procrastinated five years| How the learned counsel can argue that this was no surprise upon the plaintiffs, or how they have discovered that no continuance was asked, cannot readily be divined. The surprise was inevitable, and no such fact is stated upon the record, as a waiver of time to reply, and cannot be presumed--although on principle it would not vary the hardship of the case. This court, it is believed, will decide this exception upon principles applicable to all cases, and it is most respectfully submitted, whether the first exception exhibits a proper exercise of the sound discretion entrusted to the county courts by the acts of assembly of 1809, ch. 153, s. 1.

2. As to the fourth and fifth bills of exceptions. In considering these exceptions together,  [**80]  it is proposed to inquire in the first place on which party the proof lies by the 6th plea. 1st. As to the onus probandi. The 2d prayer of the 5th bill of exceptions asserts that the burden of proof is cast on the defendant by this issue; and that in the absence of all proof on his part and the production of the bond by the plaintiffs, coupled with the admission that the defendant signed and sealed it, entitled the plaintiffs to a verdict on this issue. The defendant's counsel deny this proposition, on the ground that the special circumstances stated in the plea are not put in issue--but merely the conclusion which contradicts and affirmative in the declaration, and so puts the plaintiffs to prove their averment. They urge with much subtlety, that if the special circumstances stated in the plea are to be considered as new matter in avoidance, the plea should have concluded with a verification, whereas it is well established that such a plea ought to conclude to the country. It is admitted that the conclusion of this plea is right; but the fallacy of this ingenious argument lies in the application of the ordinary rules of pleading in other cases to the plea of special non est factum,  [**81]  or as Lord Coke terms it, the general issue with an issent. 5 Com. Dig. 387. Whilpdale's Case, 5 Co. Rep. 119. This is a peculiar plea, which impliedly admits the signing and sealing, but seeks to avoid the writing as a deed, by reason of extrinsic circumstances. It is a plea sui generis, and disused in modern times for the reason assigned by Lord Holt, in Bushell vs Pasmore, 6 Mod. 218. "That it is impertinent, as it puts the defendant to proof of such extrinsic circumstances in avoidance, in consequence of the implied admission contained in it." One of the defendant's counsel argued as if it were optional with the defendant to shift the burden of the proof by the form of the conclusion. If the defendant concludes with a verification, then the plaintiff (says he) may take issue upon either of the facts; but if the conclusion be to the country, the preceding matters are only inducement and cannot be traversed; so that the plea is in that case only the simple general issue denying the averments in the declaration. It would be indeed an extraordinary rule in pleading, that the affirmative of the issue should depend upon the conclusion of a plea. The conclusion of a plea depends on the [**82]  simple inquiry whether there be a direct averment and denial, without regard to the nature of the issue. The rule is well established, "that if the plea conclude with a special negative to the affirmative in the declaration, (as in this case,) it must conclude to the country, and the defendant must prove the special matter, if the plaintiff join issue upon the whole plea." The similiter puts the whole plea and not the conclusion of it in issue. Thus, in covenant, if the breach consists in nonpayment of a sum of money at the day, or in not repairing, and the defendant avers payment or repair, and concludes to the country; yet the issue lies on the defendant. So if lessee is to pay rent during the life of J. S. and the plaintiff avers a breach and the continuance of J. S's, life, and the defendant asserting the death of J. S. concludes to the country and specially negatives the averment in the declaration; yet the burden of proof lies on the defendant. 1 Chitty's Plead. 535, (537.) Again, "A conclusion of law is never traversable." Whether the special matters of fact set forth in the plea are sufficient to avoid this deed if proved, is a question of law; whether these exist or not is [**83]  a question of fact. If the defendant had concluded with a verification, the plaintiff must have denied specially the matters of fact set up in the plea, and tendered an issue to the country, in which the defendant must have joined; because he could only reassert the same matters in a rejoinder, and could not depart from his plea; but as he concludes this plea to the country, the plaintiff had no alternative but to add the similiter which denies the whole matter of fact asserted in the plea. (1 Chitty's Plead. 549.) Neither party is at liberty to conclude either way as he may deem fit, excepting only in the single case where one of several facts is denied with a formal traverse. 1 Chitty's Plead. 538, 549, (550.) Where the words, "virtute"--per quod "pretextu," et "ita quod," &c. introduce a consequence or inference from preceding matter, they are not traversable. Priddle & Napper's case, 11 Coke, 10. Henry Pigot's case, Ib 27. Beal vs Simpson, 1 Lord Ray. 408. The King vs The Mayor, &c. of York, 5 T. R. 66. Bennet vs Filkins, 1 Saund. 23, (note 5.) 5 Com. Dig. tit. Plead. (E. 30,) 412. 1 Chitty's Plead. 627. See Precedents, 2 Chitty's Plead. 589. That the proof of this issue lies exclusively [**84]  on the defendant by long established and unshaken decisions, appears from the following authorities. Bushell vs Pasmore, 6 Mod. 218. Henry Pigot's case, 11 Coke, 27. 1 Chitt. Plead. 478, 479. Gardner vs Gardner, 10 Johns. Rep. 47, 49. Van Valkenburgh vs Rouke, 12 Johns. Rep. 337. Coare vs Giblett, 4 East, 94, 95. Butler & Baker's case, 3 Coke, 26. 3 Dane's Ab. 466. Souverbye vs Arden, 1 Johns. Chan. Rep. 250, 255. 5 Com. Dig. 643. Whelpdale's case, 5 Co. Rep. 119. Stark. Evid. 479, 474. 1 Phil. Evid. 128, 129. Bull. N. P. 172. 2d. But 2dly, admit the issue lay upon the plaintiffs, have they not given sufficient prima facie evidence of the due execution and acceptance of this bond to justify the first prayer in the fifth bill of exceptions? Possession of a bond by the obligee, and proof of signing and sealing by obligor, are in ordinary cases sufficient to justify an inference of due delivery and acceptance. Even Chief Justice Marshall admits this to be so in the case of individuals; and that assent or acceptance are to be presumed from the beneficial nature of the grant or deed--indeed it will not be denied by our learned opponents. That such is the established doctrine in England [**85]  and in several of the United States, appears from Butler & Baker's case, 3 Co. Rep. 26. Periman's case, 5 Co. Rep. 84. Souverbye vs Arden, 1 Johns. Ch. Rep. 250, 255. Wood vs Owings, 1 Cranch, 251. Jackson vs Phipps, 12 Johns. Rep. 418. Clarke vs Ray, 1 Harr. & Johns. 323. Acceptance is always implied, and refusal must be proved to defeat the deed. Shep. Touch. 54, 56, 57, 74, 75. Whelpdale's case, 5 Co. Rep. 119. 2 Stark. Evid. 479. Johnson vs Baker, 4 Barn. & Ald. 440. Wankford vs Wankford, 1 Salk. 301. Is there any feature in the structure of corporations to subject them to a different rule? The decision of Chief Justice Marshall, at Richmond, gave birth to the sixth plea in this case. But that decision proceeded upon the old settled doctrine, that secondary evidence could not be admitted which presupposed better evidence behind, and within the power of the party. He presumed there was written evidence of the acceptance in that case; but that decision has been overruled by the supreme court at the last session, (the chief justice being the only dissentient) a. Nay, this very point has been settled with us in this court in the case of The Farmer's Bank against Whittington, 6 Harr.  [**86]  & Johns. 548. In that case this court held, with his Honour Judge Martin, who tried the case, that unless it actually appeared that there was a written entry of the fact offered to be proved by parol evidence, then such evidence was admissible to prove any act of a corporate board or body. It appearing from the record of the proceedings, that there is no such entry in this case, parol evidence is admissible to prove the delivery to the obligees and their acceptance of the security.

a Bank of United States vs Dandridge, 12 Wheat. 64.

3. The evidence offered in this case was sufficient to warrant this inference by the jury, and the court therefore erred in the opinions stated in the fourth and fifth bills of exceptions. 1st. It was acted under by the cashier and the bank; and even acceptance of a charter has been implied by a corporation acting under it. The King vs. Barzey, 4 Maul. & Selw. 255. The King vs. Amory, 1 T. R. 575. 2d. It was placed by the former cashier, who was the common agent of the defendant and of the bank, among the muniments of the bank, and left in their possession, when he left the bank. It was found by Mr. Pinkney, the present cashier, in the iron [**87]  chest in the vault of the bank, which is not in the custody of the cashier, but of the president, as the court will perceive by the 18th and 19th articles of the by-laws. The corporate seal and valuable muniments of the bank are kept in this iron chest. Finding the bond in such a place is good legal evidence of delivery. Mechanics' Bank vs Bank of Columbia, 5 Wheat. 337. Fleckner vs United States Bank, 8 Wheat. 357. Patterson vs Bank of Columbia, 7 Cranch, 299. Trials per Pais, 370. 2 Bac. Ab. 648. 5 Bac. Ab. 160. Goodright vs Straphan, 1 Cowp. 204. The case of Smith vs The Governor and Company of the Bank of Scotland, 1 Dow's Reports, 272, in the House of Lords, is quite conclusive on this subject, as to the sufficiency of an implied acceptance by that bank, and a complete delivery by the obligor. The bond in that case had been refused by the bank and sent back to their agent to be altered by the obligor. The alteration was made, and while the new bond was in transitu by the post office, and before it came to the hands of the board of directors, or its officers, the cashier was removed. Yet this was held by all the judges and the Lord Chancellor, in 1813, to be a sufficient delivery [**88]  and acceptance to bind the surety. Compare the circumstances in that case with those that exist here, and can there be a loop left to hang a doubt on? But it is said, it ought to appear at least that a sufficient board was convened to approve. That it was a special power delegated to a special body by the charter, and must appear to have been strictly complied with by those claiming under it. That they have no common organ of language but when properly assembled and their voice made known by writing. If there were any force in these objections, no implied assumpsit could ever be obtained against a corporate body--No agent could be appointed by parol authority for any purpose. The supreme court of the United States, and most, if not all, of our state courts, have sanctioned such an assumpsit and such a power. If they can be bound by the acts of agents and by implied contracts, though no proof whatever of a regular assemblage of the directors, or of any vote conferring such powers upon their ostensible agents--a fortiori--May their concurrence be presumed when that is to give effect only to a contract in their favour; as in the case of femes covert, lunatics and infants, to whom a grant [**89]  is valid, though they cannot contract so as to bind themselves? It is further said, that Higginbothom, acting as cashier, affords no presumption of his duly qu lifying under the charter, because he acted as such under the articles of association before the charter. The answer is obvious. The condition of this bond estops both Higginbothom and Ridgely from denying that Higginbothom was appointed and acted as cashier under the charter, for this recites his appointment by those to whom the bond is given, in March 1805. Now the plaintiffs had been incorporated on the 24th of January 1805. But the inquiry is not when he signed or when the bond was delivered or accepted. That is quite immaterial; for the obligation of the bond only commences from the time of the first breach of the cashier's duties. The statute of limitations only runs from the breach, and not from the date; nor is it declared on as an obligation made on any particular day, as seems to be supposed on the other side, but merely as a writing obligatory bearing date, &c. Are all the consecrated rules of evidence to be trampled under foot in this case because it is the case of a surety? Is not the presumption of law to prevail [**90]  in this, as in ordinary cases, that the instrument was duly executed (signed, sealed and delivered, to the satisfaction of the obligees) on the day that it bears date, unless some tittle of evidence can be adduced to rebut such prima facie evidence? Are the court to presume a dereliction of duty in every board of directors for fifteen years in violation of their charter, and in fraud of the stockholders, whose agents they were, for the purpose of approving the cashier's bond, in order to raise a conjecture that they suffered this officer to exercise his functions, and committed to his custody all the funds of the institution during all this period, without any security for his good behaviour? Rather will the court presume omnia rite acta when no evidence is adduced to shake the good faith and intelligence of those who have acted so long in the direction of that public institution. It is urged further, that there must have been an acceptance by the president and eight directors; and that the bare custody of the bond can be no evidence of their satisfaction with the security, and the case is compared to bonds lodged on file on appeals and writs of error. Without examining the positions [**91]  advanced respecting such bonds, which it is conceived are not sound, it is sufficient for our purpose to reply, that the cases are not at all analagous. The persons who were to approve this bond were the avowed agents of the obligees in their corporate character--a board of perpetual succession, and the same persons who have the custody and control of all the bonds, deeds and muniments of the corporation. Their possession is that of the corporate body itself. As well might it be contended, that the bank had no title to the lot on which their banking-house stands, because that was only built by their president and directors, and there does not appear any endorsement on the deed corresponding with its date of their acceptance of the grant, and no entry in their books of a meeting of the board on that day, nor of the number of directors who were present when the grant of that lot was accepted by a solemn vote. The universal practice of all corporate bodies throughout this country, and of all judicial and executive public officers must be violated, and all sheriff's, guardian's and administration bonds must be cancelled to make way for this unfledged novelty| We humbly think that ingenious [**92]  argument must be sustained by something more weighty than a single nisi prius decision, however respectable, before this enlightened tribunal will be induced to plunge the people of this state into this unfathomable gulf of uncertainty, respecting all our public securities. It is thought unnecessary to pursue this branch of the argument through the wide range adopted on the other side, especially since the supreme court of the United States have decided that no written entry is essential to the validity of any corporate proceeding, and since this court have recently held the same doctrine in a much stronger case than the present. The case of the Farmers' Bank vs Whittington is considered by us as quite conclusive on this subject; a decision entitled to higher respect certainly, in this court, than any other that can be cited; and yet the learned counsel on the other side take no notice of the case, nor of the case of Smith vs The Governor, &c. from Dow's Reports, but treat the question as if it were still open.

4. As to the demurrers, relative to the duration of the bond. It is contended by the appellants that the defendant cannot bring in question the duration of the bond upon [**93]  these demurrers; and that if these breaches are well assigned in other respects, the appellants are entitled to judgment upon all the demurrers in this record, whatever may be the opinion of the court as to the legal duration of the bond. The court will remark, that the defendant has demurred to all those breaches in the replication which are assigned on a day subsequent to the 6th of February 1817, when it is alleged the first charter expired. These breaches may be divided into three classes. 1st. The first class consists of those in which the breaches are alleged to have happened on "various days and times from the day of the date of the bond until the 25th of May 1819." (These are the 4th, 8th, 12th, 16th and 22d breaches.) 2d. The second class consists of those breaches containing three distinct epochs, the last of which epoch is assigned thus, "and on various days and times from the 6th of February 1817, until the 25th May 1819," (the last day being subsequent to the limitation in the first charter)--such are the 1st, 5th, 9th, 13th and 19th breaches. 3d. The third class of breaches is where a specific act of fraud is charged on a particular day, that being a day subsequent to [**94]  the expiration of the old charter--such are the 17th and 18th breaches. All these breaches are demurred to by general demurrer, on the ground that the time mentioned therein is too broad for the extension of the bond. Is the time mentioned in either of these breaches material? If not, the demurrers cannot be sustained. As to the first and third class of breaches, the court will observe, they all charged tortious acts, and in cases of tort the day laid is perfectly immaterial. It is not traversable; nor is the plaintiff bound to prove it as laid. Replications under the statute of William and Mary are subject to precisely the same rules as declarations. Lord Coke lays down the established doctrine in such cases. (Co. Litt. 282. 7 Bac. Ab. 33.) "When the jury upon a plea of not guilty in modo et forma, find the goods taken on a different day from that charged, though charged on a day certain, still the verdict is good, though the plea is in modo et forma, for the substantial part of the issue is whether the goods were taken." So Chitty in his treatise on pleading--"The statement of time of committing injuries ex delicto is seldom material. It may be proved to have been committed on a [**95]  day anterior or subsequent to that stated in the declaration, so that it appears to have been before action brought." 1 Chitty's Plead. 383. 2 Chitty's Plead. 367, 368. White vs Stubbs, 2 Saund. 295, (note 2.) So in other actions, where the day is not material in the declaration, the plaintiff may, when it is rendered necessary by the defendant's plea, vary from the day in the replication, and it is no departure. Millor vs Walker, 2 Saund. 5, b. (note.) As to the third class of breaches--the above remarks are equally applicable, and also the further observation, that here are three epochs quite distinct from each other; two of which are confessedly good. The third then is mere surplusage. It may be safely stricken out, and yet the breach be well assigned. "It is a rule that an entire replication bad in part is bad for the whole; but this rule does not apply where the matter objected to is mere surplusage." 1 Chitty, 617. "Immaterial averments need not be proved if they can be safely struck out," 1 Phil. Evid. 162, 164, (note.) 2 Phil. Evid. 82. Now in this case the averment of breaches from 6th of February, 1817, until the 25th of May, 1819, may be safely struck out. How then can the [**96]  general demurrer to the whole breach be supported? Besides, in all cases where the time is improperly laid the demurrer must be special. It is only defect in form. The plaintiff may waive the time laid in the declaration at the trial if he will, and confine his proof within the time of his title in trespass, or of the obligation on a collateral bond. Osborne vs Rogers, 1 Saund. 269, (and note 21,) and Manchester vs Vale, 1 Saund. 24, (note 1.) By the general demurrers to this class of breaches, the defendant admits the cashier's breach of duty as charged on various days from the date of the bond until February, 1817. And are not the plaintiffs entitled to recover for such defaults? The defendant should have demurred to the averment in the replication, "that R. Higginbothom continued to act as cashier under and in pursuance of the said bond until the 25th May, 1819," which averment overreaches all the breaches--which would have presented the question of the legal duration of the bond to the court, (the acts of assembly and the bond being set forth upon the record.) Or he might have traversed this averment specially, and raised the question of law at the trial, or he might have taken [**97]  issue on these breaches and have objected at the trial to any evidence of defaults after the 6th February, 1817. In the numerous cases cited upon this branch of the argument where this question has been agitated, no one case can be found where the very learned counsel for the defendants, in England and in the United States, ever thought they could raise this question by demurring to the time laid in the breaches assigned under the statute. In Curling vs Chalklen, 2 Maule & Selwyn, 502, and in Peppin vs Cooper, 2 Barn. & Ald. 431, as well as in the cases of Leadley vs Evans, 9 Serg. and Lowber, 306, and Miller vs Stewart, 9 Wheat, 702, the question was fairly raised, by a special plea that the bond was annual, &c. Why was not such a plea put in here, so as to present to the judicial eye of the court the real question sought to be raised; but which it is believed cannot be raised on these pleadings without confounding all distinctions between material and immaterial averments. These views of the preliminary point under the second head of the argument, would seem to render the further discussion of the other points under this head superfluous; but as it is desirable to ascertain the opinion [**98]  of the court upon all the points that may hereafter occur in the further progress of this cause, it has been deemed proper to discuss the question as to the duration of the bond, upon this argument. The defendant's, the appellee's counsel, have arranged this question under two heads. 1st. That this was an annual bond; and 2d. That it was only coextensive with the duration of the first act of incorporation--which will be considered in their order. 1st. Was it an annual bond? The whole argument on the other side rests upon a false assumption, that the cashier was an annual officer because he held his office under annual officers, viz. the president and board of directors. If we consider the nature of the power under which this officer was created, and the tenure by which he held his office, the fallacy of this argument will fully appear. The act of incorporation provides for the annual election of the president and the directors; fixes the day and mode of their election, and prescribes their respective qualifications. (See fundamental articles, 2, 4, 6, sect. 10.) Why are no such provisions made respecting the office of cashier? The answer is obvious from article 10. The form of the [**99]  bond shows that he was to be elected during good behaviour. No qualifications are prescribed for this officer; no limitation fixed to his office; no provision that he is to hold over in case no election is made on the day fixed, as in the case of directors. The duration of each board regularly terminates on the 1st Monday of July. If the cashier went out with them, how happens it that the 20th and 21st article requires the judges of the election to notify the cashier of the persons elected for the new board? As no provision is made for his holding over, of course he goes out of office the day preceding the election of the new board if he is only an annual officer and no cashier exists until one is chosen by the new board. Wherever the legislature intend the officer shall be appointed in a particular manner, and hold for a specified term, these are designated. (Art. 7. and art. 9.) But the cashier is to be elected by one body, and his bond is to be approved by another. The president has no voice in his election; but he and the board must both approve of the bond. The amount of the bond is fixed by the legislature, and also the form of it. And moreover, we find in the charter an oath [**100]  prescribed for this officer, and for no other agent of the corporation. Is the cashier thus qualified, thus sworn, thus appointed, thus approved, to be viewed as the mere creature, deputy and valet of the directors, their shadow which disappears with their body? No| He is merely nominated by them in the execution of a statutory power, but when nominated, he is in by virtue of the statute, and under the power itself, as an officer of the corporation, and not as a deputy of its deputies, the board of directors. Fox vs Harcourt, 1 Show. 516, 532. S. C. 4 Mod. Rep. 167, and 5 Bac. Ab. tit. Office & Officers, (H.) 200. If a grant or an appointment be made without limitation, it is by the established rules of the common law a grant or appointment for life. If a statute creates an office "quamdiu tantum se bene gesserit," the officer has a freehold in his place by the common law, determinable by misdemeanor alone. If the cashier be the officer of the corporation, that being a continuing body, his office is of course coextensive with the "corpus corporatorum.." His acts bind the corporation and not the board of directors. He is not the deputy of the president and board, but of the corporation.  [**101]  His bond is to the corporation. The condition recites his appointment by the corporation, and the obligors are estopped from denying it. He is known to the public as the officer of the corporation, and as such his vouchers are recognized. Their notes, their correspondence, indeed all their transactions with the state and with other banks are stamped with the superscription of his image. The corporate body, though invisible in itself, is beheld through him tanquam in speculo. Is it not better for the corporation, for the public, and even for the surety himself, that this office should be permanent? He becomes daily more perfect from experience. He has a regular renewing bounty on his good behaviour. The risk of his surety is daily diminished, because his cares and duties become every day less onerous. All the cases cited on the other side, are cases of subordinate agents or officers acting under annual officers, and binding by their acts annual officers alone, whose power is forever spent with the expiration of the year; but wherever the persons to be affected by the acts of such subordinate agents have a continuing existence; wherever such agents represent and serve a continuing body,  [**102]  and act by virtue of a power that is not exhausted by the amotion of other agents holding by a more limited tenure, such subordinate officers hold over. Thus in the case of Curling vs Chalklen, 2 Maule & Selwyn, 502, cited on the other side, the churchwardens and parishioners acted conjointly in the appointment of a collector; yet his office was held a continuing office, notwithstanding the churchwardens were annual officers, and were removable at the end of the year; because the parishioners were still a continuing body corporate, whom the collector represented, though the churchwardens were gone, by whom he was nominated. The same observation will apply to Hassel vs Long, 2 Maul. & Selw. 363, and Miller vs Stewart, 9 Wheaton, 702, and indeed to all the cases cited against us. The court will find upon examination that these are all cases where the subordinate officer was the deputy of those who nominated him--that his life depended on theirs as his principals. The amotion or death of the principal then would of course vacate the power. But because the governor and council, who are annual officers, appoint the judges of this high tribunal, and also the chancellor of the state, was [**103]  it ever suggested that those officers were their deputies and do not hold their offices during good behaviour? So in the case of our senators and registers of wills, though the appointing power may be extinet, the result of its exertion may be and is lasting. The learned counsel opposed to us rely on the words of the 8th section, as showing that the cashier was only a servant "under them;" that is, under the board of directors. This argument would reach too far; as it would leave to the board the same discretion as to the necessity or propriety of appointing any cashier as they are vested with, in relation to the other servants or officers there mentioned; to whom alone these words "under them" obviously refer; such as the porter, the book-keepers, tellers, &c. The cashier is as necessary an officer of the corporation as the president. The board of directors appoint both, and it might just as well be contended that the president is only a deputy of the board of directors and not an integral part of the corporation, as that the cashier is. 2d. Does the bond extend beyond the 6th February, 1817? This may be answered by another question--Is this corporation which sues identical with that [**104]  to which the bond was given and to whom the service of the cashier was conditioned to be performed? If so, the bond is sufficiently broad to cover the whole time of R. Higginbothom's service as cashier of the president and directors of the Union Bank. It is to be borne constantly in mind, that the words, the very terms of the bond, cover the whole time that Higginbothom should hold the office. There is no limitation in the preamble or in any other part of the bond, looking to the expiration of the first charter. His appointment was not coextensive with their charter. It was during good behaviour. He held by no other tenure before 1817, and by the same tenure afterwards. Here was no new appointment of Higginbothom after the new charter, and if he did not hold his office legally afterwards by virtue of his first appointment at the time this bond was given, then all his subsequent acts were invalid and did not bind the corporation. He had no power, if this argument be well founded, to sign or issue bills, to discharge debts or receive deposits, or pay checks, &c. so as to bind the stockholders. He was either cashier to all intents and purposes under his first appointment from 1817 to [**105]  1819, or not. If the former, then the surety has undertaken for his fidelity during that period; because no shorter period is limited by the bond than during his continuance in that service of those who appointed him. If the latter, then no act of the cashier after February 6, 1817, is valid in law. And the same construction which will absolve the surety here will annul and cancel every official act of Higginbothom respecting the concerns of the bank during those two years. If the corporation after 1817 was not one and the same with that before, then no part of the property, funds or notes of the old corporation belongs to this; no debts owing by or to the old corporation can survive to this; nor could the present plaintiffs maintain a suit upon this bond even against the cashier himself, because they are not the obligees according to that construction. But in Scarboro vs Butler, 2 Levintz, 237, it was held too clear for argument, that a debt due to a corporation is also due to the second corporation after a renewal of its charter, even though the name of the obligees is changed, and the debt shall be recovered in the new name. So it is laid down by Lord Coke, (Co. Lit. 52, b.) that [**106]  an attorney's power is not countermanded even by a dissolution of the corporation. Shepman vs Thompson, Willes's Rep. 105. Wynne vs Thomas, Ib. 565. 2 Livermore on Agency, 298. Was the duration of this bond then extinguished when the service continued to be to the same persons and the terms of the condition are made coextensive with such service? When the defendant signed this bond, fixing the time of service under that appointment as the only measure of its duration, he must have known that the legislature might with the concurrence of the bank and of the cashier protract his risk and continue the officer beyond the time limited by the first law. Why did he not provide against this by the terms of the boad? As he did not, can he now ask the court to insert for him a new limitation in the contract and restrict it to the duration of the first charter, when he himself has fixed the limitation, not by that, but by the term of service? Suppose he had declared by parol at the time he signed the bond, that he intended it should only endure as long as the first charter. The court would not admit of such parol explanation of his intention to contradict the plain import of the terms used by [**107]  him in the writing. If the terms of service of that corporate body, is departed from, by construction, what rule can the court adopt? Shall it be a vague conjecture as to the variance of risk? Then every change of the clerks, every augmentation of the capital of the bank called in, every imposition of new duties upon the cashier by subsequent by-laws, varied the risk of the surety, by enhancing the responsibility of the cashier. If the court is to speculate on the political conjectures of the surety at the time, the practice of the legislature of this state must have led him to foresee that the charter would probably be renewed. Every charter had been renewed in Maryland whose limitation had run out. Such were the Baltimore Insurance Company, incorporated by act 1795, ch. 59, for nine years, renewed 1804, ch. 37; the Maryland Insurance Company by act 1795, ch. 60, and 1804, ch. 106, and the charter of Baltimore city continued 1798. As he made no provision for a limited time of service, he constituted the cashier his agent to extend the period from year to year, with the concurrence of the bank, so long as both should assent to his holding the office. If the cashier's fidelity became [**108]  questionable, or his defaults known, the surety could at any time discharge himself by notifying the other party, and requesting his removal. But after standing by from the year 1814, (when the first act of assembly was published, renewing the charter,) until 1819, and seeing this cashier continuing to hold his office, and knowing that his own bond was in possession of the bank, guaranteeing the faithful service of Higginbothom, shall the defendant now be permitted to say that he was not his surety for the two last years of his service? We do not contend, that the surety is ever to be held beyond the strict scope and letter of his engagement. We admit that he is not to be made constructively liable, but we know of no case where he has been relieved in a court of law from the plain contract, because he has received no value for his undertaking. How do the cases, which will no doubt be cited on this point against us, trench upon our doctrines? They consist of three classes. 1st. Those, where there was an express limitation in point of time by reciting the duration of the office, or referring to the law which limited it. And the default occurred subsequent to the express limitation in [**109]  the engagement. Such are Arlington vs Merrick, 2 Saund. 412. Liverpool Water Company vs Atkinson, 6 East, 507. Wardens of St. Saviour vs Bostock, 5 Bos. & Pull. 175. Hassell & Clark vs Long, 2 Maul. & Selw. 363; and United States vs Kirkpatrick, 9 Wheat. 702. 2d. Those where the persons bringing the suit were different from those contracted with, and one or more of the plaintiffs had not been obligees of the contract, or sued for different interests; as Wright vs Russell, 3 Wils. 530; where the contract was with Wright as a sole trader, and he sought in that suit to charge the surety for his moiety of co-partnership loss. So in Barker vs Parker, 1 T. R. 287. The bond was to the testator for the fidelity of clerk in his service. After his death the executor carried on the trade, and sued for a loss in such distinct trade. The court very properly held it a distinct concern from the business of the testator, and that the bond did not survive to the executor, so as to cover defaults in his service. 3d. Cases of partnership bonds, where one partner dies or goes out, or a new one comes in. In all these cases, the interest that accrues after such event, is a distinct interest from the previous [**110]  one which was guaranteed, and the courts have held, that the bond did not extend to a new partnership; because, the characters of the partners was an essential ingredient in the contract. Such are the cases of Strange vs Lee, 3 East, 484-9. Pepin vs Cooper, 2 Barn. & Ald. 421. Weston vs Barton, 4 Taunt. 673. Myers vs Edge, 7 T. R. 250. Leadley vs Evans, 9 Serg. & Lowb. 306. But where the bond is given to a fluctuating body, the change of the members does not destroy the obligation of the bond, because individual character does not enter in the consideration of the surety from the very nature of the association. The case of corporations is made an express exception from the general rules in the above cases by Lord Ellenborough, in Strange vs Lee. The same doctrine is laid down in Medcalf vs Bruin, 12 East, 399; and cases there cited. Barclay vs Lucas, 1 T. Rep. 291, (note a.) Dance vs Girdler, 4 Bos. & Pull. 34, 41. Hassell & Clark vs Long, 2 Maule, & Selw. 363. Miller vs Stuart, 9 Wheaton, 680; and especially, Curling vs Chalklen, 3 Maule & Selw. 502. One of those cases turned upon the circumstance that the bond was given to a voluntary association, and default occurred after it was [**111]  incorporated; held, that not being incorporated, the obligees could not transmit the obligation to their successors, but only to their individual administrators or executors. In the case of Barclay vs Lucas, Lord Mansfield endeavoured to establish a different doctrine, but failed, although the principles he there asserts are fully sanctioned by all subsequent decisions, that if it had been a case where the bond could be given to the house or firm, it would continue in force as long as the house should exist. Now the only case where it can be so given consistently with the rules of law is, that of corporations whose obligations are transmitted to successors. But here are no successors; it is the identical person who sues, with whom the bond was made, the first corporate body never did expire; its life was never suspended for an instant. Higginbothom held in 1819 under the same appointment that he held in 1805. His commission was the same; the obligees were the same; and his duties were the same in 1819, as when the bond was given; the new law did not operate as a grant, but as a confirmation. If a temporary law be continued by another, the former statute is as if it had been made perpetual [**112]  at first. Vin. Ab. tit. Statutes, 513. 6 Bac. Ab. 372. Shepman vs Henbest, 4 T. R. 114. A covenant runs with a corporation, though the charter be renewed. 4 Leon. 187, case 290. So the new body may sue for breaches as well before as afterwards. Lee vs Waring, 3 Desaussure, 70, 73. Copley vs Delaunoy, 2 Ld. Raym. 1056. Burland vs Tyler, Ib. 1391. Lee vs Pilney, Ib. 1513. Vin. Ab tit. Covenant, 112, 416. The case of a covenant by a lessee for life to a corporation sole, to victual the cellerer. The corporation was dissolved, and possession given to a new body, the lessee was held bound to victual the steward of the new body; this is a case precisely in point. Finally, if the cashier be the deputy of the corporation, and his principal still lives and breathes, considers, approves or condemns, is still occupied in the same business, and in the same place, under the same charter and authority; so is his deputy in full life, vigour and health, with all his functions unimpaired. As well might we dispute the identity of our image in a clear running stream, because the drops that reflected it a moment since are not the same that reflect it now, as to deny that the cashier of the seventh of [**113]  February, 1817, was the same officer that acted that day, the hour, the moment, the punctum temporis before. Who can catch the last glimpse of the old charter, or the first of the new?

5. As to the plaintiffs' 2d, 3d and 6th bills of exceptions. 1st. Henry Payson was a competent witness to prove himself the depositary of the book called the By-Laws, &c. as a muniment of the bank. The case of Rex vs Netherthrong, 2 Maule & Selw. 337, is precisely in point, and in that case the interest of the witness was admitted. Northrop vs Speary, 1 Day's Rep. 23. Peak. Evid. 155, 169. Moor vs Pitt, 1 Ventr, 359. Weller vs The Governors of the Foundling Hospital, Peake, N. P. 153. The objection on the other side that he had ceased to be the depositary in May 1819, and therefore not competent, is singular, because the facts offered to be proved, occurred while Payson was the depositary and Higginbothom was cashier. He alone of course could identify the by-laws which had prescribed the cashier's duties under this bond, and, if he were a competent witness, to prove himself the depositary of this book. The decision of the county court was erroneous as stated in the plaintiffs' 2d exception; because [**114]  they held him incompetent to prove any of the matters offered to be proved by him. 2dly. The by-laws were sufficiently proved. These were the rules of duty prescribed for the cashier, and under which he acted. They are proved in toto as to the cashier's duties, the only point material, by James A. Buchanan, by Dunbar and Goldsmith, and the genuineness of the book was proved by Jona. Pinkney. All the witnesses prove the 19th article prescribing his own duties to be in the handwriting of Higginbothom. The court below proceeded on the ground that a written entry was the only legal evidence of the appointment of a cashier or of the rules of his conduct. As this question has been discussed under the first division of the argument, it will not be repeated here. By the charter, (9th sect.) the president and directors were authorised not only to make by-laws, but such rules, orders and regulations, for the government of the officers and servants of the bank, as they should see fit, either in writing or otherwise; and Ridgely guaranteed Higginbothom should faithfully perform such rules and regulations whether in writing or not. John Hollins, a former director, proves that these by-laws offered [**115]  were adopted and used by the bank, although he could not identify the book; but the plaintiffs gave other evidence that there was no other book in which the proceedings of the board were entered. How could the rules of conduct be better identified and established? 3d. As to the sixth bill of exceptions--(The admissibility of the books in evidence.) It appears that the court below on this bill of exceptions rejected all evidence of the truth of the breaches, before the jury had found the truth of the matters of fact alleged in the sixth plea; the court thus assuming the question of fact, that the bond was so delivered as was stated in the plea. The opinion given on the 6th plea only ascertained what was sufficient evidence of acceptance of the bond. And the question whether it was delivered conditionally to await such acceptance or not, was a pure question of fact, and not covered by the opinion of the court. Delivery by obligor, and legal acceptance by obligee, are two distinct matters. The opinion of the court assumes that absolute delivery would not be good and sufficient, however satisfactory; that there can be no presumed assent of the obligee, but there must be written acceptance [**116]  to make it his (the obligor's,) deed. Deed, or not, is a question for the jury. Nominal damages ought to be assessed on all the breaches, and if nominal, why not real, by the same jury that tried the issues? They had a right to find a verdict against the direction of the court upon all the issues, especially on the sixth plea, and the court had no right to reject evidence legal upon one issue, upon the presumption that the jury would find another issue conformably to the direction of the court which would render such issue nugatory. If the evidence offered here was admissible before the court had expressed its opinion on the sixth plea, it was admissible after. The competency of evidence does not depend upon the order in which the issues are tried; there being no legal evidence of the bond in the opinion of the court. When the fourth and fifth exceptions were signed by the court, it did not preclude the plaintiffs from offering further proof of it in a later stage of the case. At all events, all the issues were on trial together, and were to be found by the same verdict, and the court had no right to shut out evidence to prove the breaches assigned, upon a presumption that the jury [**117]  would find that there was no bond. The court decided both law and fact on the issue upon the sixth plea, in order to exclude this evidence. 4th. As to the proof of the books.--They are public corporation books, in which the state itself is interested to a large amount; of a corporate body so recognized as a part of the state, that some of its officers are appointed annually by the legislature, under whose direction the books are kept. The books are directed to be inspected by the treasurer of the state, and are as much public records as the books of the county clerks, surely as much as those of the bank of England, and other public corporations. Again, the genuineness of the entries or their falsity, compared with each other, was alone in issue, and not the truth of the facts which those entries professed to assert. It is one thing to offer an entry to prove the delivery of an article, or the payment or receipt of money, and quite another to prove merely the genuineness of the entry itself, by proving that A. B. or C. made such an entry; and that he made others inconsistent with it; so that one or the other must be false. Now, the 20th, 23d and 25th breaches assigned, put in issue [**118]  the false entries by the clerks in the books, as the consequence of the cashier's neglect of duty; and the 10th and 11th breaches put in issue the charge, that the cashier fraudulently caused and permitted deceptious entries to be made in these books. Barry vs Bebbington, 4 T. R. 514. Stead vs Heaton, Ib. 669. St. Lawrence vs Webb, 3 Bro. Parl. Cas. 640. Price vs Earl of Torrington, 1 Salk. 285. Warren vs Greenville, 2 Stra. 1129. How were these breaches to be proved? Surely not by the conspirators, even if present; but by any indifferent witness who could prove these entries to be made by them, or in their handwriting--The books being the common organ of deceit between the clerks and the cashier. Besides, the conspirators, Burt and Tanner, could not have been compelled to answer, if they had been present, and Hart was dead. The books were not offered to prove per se, that they were kept under the superintendence of Higginbothom, but that fact was offered to be proved as a distinct fact by other evidence, as well as the fact that Jacob Hart was dead. All the books were offered, because some might explain the others, and if only part of them had been offered, it would have been objected [**119]  to, as only a mutilated confession, or an extract from a deed, &c. Besides, if these are to be considered only as entries, by the agents of the cashier acting under his superintendence, they would have been admissible in evidence; because the witnesses were out of the jurisdiction, and not within the reach of the party, and their residence unknown, so that no commission could be issued. Nichols vs Webb, 8 Wheat. 335, 336. Owings vs Speed, 5 Wheat. 423. 1 Phil. Evid. 169. Finally, the entries were evidence as acts covenanted against by the cashier and his surety. They both knew that the conduct of the clerks in keeping these books was subject to the cashier's superintendence. The complaint is, that he did not superintend their conduct in this respect, nor report their defaults to the board when he knew it, as was made his duty by the by-laws. We complain that he knew that the clerks made false entries in the books of the bank; that he knew that they received money with which the bank was chargeable, which they did not credit to the depositors, and that they paid out money of the bank to persons who ought not to receive it. Barry vs Bennington, 4 T. R. 514; and all this is proved by [**120]  their own confessions, who were common agents between the cashier and the bank. We do not complain that he did not perform what was impossible, but that he connived at all these acts of misconduct in the clerks. In the case relied upon on the other side, (Manhattan Company vs Lydig. 4 Johns. Rep. 377,) the depositor employed a clerk out of his proper department, and the court held the bank liable only in the department where they had employed him. It is said we did not offer to prove his connivance at the false entries. The question is, whether this was not directly in issue; and if so, whether the evidence offered did not tend to prove the issue? Is a bill of exceptions to recite all the pleadings, in order to show the evidence rejected, pertinent to the issue, or will not the court inspect the pleadings to see whether such evidence offered could in any way tend to prove the issue? The by-laws proved it to be the duty of the cashier to inspect the books; his duty was in issue, and if the books were offered first, were they to be rejected, because the other matters in the same issue, were not first proved? The plaintiffs had a right to prove any one of the facts in issue, in such order [**121]  as they pleased, and the natural order was first to prove these were false entries, and then to proceed to the proof that they were with the connivance of the cashier; and lastly, that this was a violation of his official duty. Upon the whole, it is submitted to the court, that the court below erred, not only in all the points involved in the three bills of exceptions presented, under this branch of the argument, but also in the several opinions canvassed in the two first branches of this argument. And that, although sureties are not to be made liable by construction, they are not on the other hand to be relieved from the letter and spirit of their solemn engagements, upon which faith has been reposed by multitudes of helpless members of the community, whose all has been embezzled and squandered, and who have now left to their hopes, no other resource than those high tribunals of justice who are entrusted with the protection of their rights against lawless depredations. If sympathy is to approach the bench in behalf of the surety, is a deaf ear to be turned to the cry of the widow and the fatherless? b

b The preceding Argument of the Counsel of the Appellants is intended to embrace that made by them, as well in the opening of the case, as in reply to the Arguments of the Counsel of the Appellee. [**122]  

Taney, R. Johnson and Eichelberger, for the appellee. 1st branch of the argument. 1. Points on the plea of non est factum--1st, 4th and 5th bills of exceptions. 1st. The amendment was not too late. The court had the right to permit it to be made at the time it was done. Act of 1809, ch. 153, sec. 1. 2d. The plaintiffs were not surprised. They did not ask time "to prepare to support their cause." There can be no error in not giving them time, when they did not desire time. 3d. The plea of non est factum is not inconsistent (in the legal sense of the word,) with the plea of performance. Steph. on Plead. 293. 1 Chitty's Plead. 541. Com. Dig. tit. Pleader, (E 2,) 5 Bac. Ab. 448. Wright vs Russell, 3 Wils. 536. Peppin vs Cooper, 2 Barn. & Ald. 432. Dance vs Girdler, 4 Bos. & Pull. 34. Macclellan vs Howard, 4 T. R. 194. Jenkins vs Edwards, 5 T. R. 97. 4th. The special plea of non est factum, does not throw the burthen of proof on the defendant. There is no issue joined on the special circumstances stated in the plea. The affirmation in the declaration, that it is the "writing obligatory," of the party, and the denial of that fact in the plea, makes the issue between the parties. Upon [**123]  this issue the affirmation is on the part of the plaintiff; the denial on the part of the defendant. And as the plaintiff holds the affirmative, he is, according to the settled rule in courts of justice, bound to prove his allegation. In the cases of infancy, duress, usury, &c. the burthen of the proof lies on the defendant, and in those cases the plea always concludes with a verification, and the issue is joined on the matter alleged in the plea, in which issue the affirmation is on the part of the defendant, and the denial on the part of the plaintiff. See the precedents, 2 Chit. Plead. 464, 465, &c. In the case of Bushell vs Passmore, 6 Mod. 217, and referred to in 5 Bac. Abr. 373, the issue was joined on the matter alleged in the plea. The affirmation of the defendant was traversed by the plaintiff, and issue thereupon joined. On that issue the defendant held the affirmative, and the plaintiff the negative; and it is only to a case of that description that the dictum of Holt can be supposed to apply. If the issue be necessarily on the matter alleged in the plea, then the plea of delivery as an escrow could not conclude to the country. If the substance of the plea be the matter [**124]  stated in avoidance, then, as this is new matter alleged by the defendant, the plea must conclude with a verification. For the conclusion to the country is never proper unless it follows the denial of some fact alleged on the other side. It is this affirmation on one side, and negation on the other, which makes the issue between the parties. But it seems to be well settled, that the conclusion to the country is proper in a plea of this description. 2 Chil. Plead. 463, (note t,) and the cases referred to in that note. We conclude, therefore, that the burthen of proof is on the plaintiffs. They hold the affirmative of the issue, and must prove that it is "the writing obligatory" of the defendant. 5th. It is contended that the plaintiffs have not proved that it is the deed of the defendant. The only proof on this point is stated in the fourth bill of exceptions; that the bond was signed and sealed by the defendant, and was found by the present cashier of the plaintiffs, in the manner described in this exception, when he entered on his office of cashier, November 16, 1819. The bond is dated March 30, 1805. There is no subscribing witness to it, and it does not, on its face, purport in [**125]  the usual form, to have been "signed, sealed and delivered" by the defendant. By the charter, sect. 14, of the fundamental articles, it could not be the bond of the defendant unless it was accepted as such by the president and directors; and the board which accepted the bond must consist of the president and eight directors. No business but that of ordinary discounts could be done by a smaller board. Vid. rule 9th. It appears that there was no written evidence of acceptance by the bank. In maintaining the proposition above stated, it is insisted that there could be no legal acceptance in behalf of the corporation unless it was in writing. The president and directors are the representatives of the corporation, and could do no corporate act unless they were assembled together in the character of president and directors. The bond in question could be legally accepted only when they were thus assembled. When they are thus assembled, they have no common voice by which they may be heard to pronounce that they are satisfied with the bond, and thus evidence by words that they have accepted it. They have no common hand which can be seen to receive the paper, and thus evidence, by the act, that [**126]  they are satisfied with it. Their assent, their will, cannot be evidenced in the same manner as that of an individual; and as they cannot be heard to speak, or seen when they act like an individual, it seems of necessity to follow that their acts must be proved in some other manner; that is, by writing or the common seal. Anciently, their acts could be evidenced by the common seal only; in modern times by writing, because in modern times the writing may be proved with as much certainty as the common seal. The proposition now under discussion is supported by adjudged cases as well as by sound reason. 1 Fonb. 305, (note o,) ed. of 1807. Bank of Columbia vs Patterson, 7 Cranch, 299, 305. Fleckner vs Bank of United States, 8 Wheat. 357, 358. All of these cases imply, that the corporate act must be evidenced by writing; and this is in analogy to the proceedings of all political as well as corporate bodies; whether those bodies be representative or primary, they all keep a written journal of their acts, and their decisions are evidenced by the writing only. Any other rule would be pregnant with mischief. In the Bank of Columbia vs Patterson, it was admitted in the case that the corporation [**127]  had authorised the committee to make agreements on the subject. The manner in which such an authority from a corporation must be proved was not a question before the court. If writing is necessary to confer the power, the admission included it. When, therefore, in that case, the court speaks of the evidence of the contract, they speak of the promise of the agent, he being first proved to have been duly appointed by the corporation. The acts and promises of agents may, doubtless, be proved by parol. For although they are the agents of a corporation, yet they themselves are not a corporation. They must act, and promise, and contract as natural persons, and their contracts may, therefore, be made and be evidenced like the contracts of other individuals; that is, by words. It is not intended to maintain that in every case of express contracts made by the agent of a corporation, the party claiming the benefit of the contract must produce written evidence of the agent's authority. Although a corporation can neither be seen nor heard, yet in legal contemplation, it can both see and hear. And if it permits any one to hold himself out to the public as their agent in any particular business,  [**128]  and by its acquiescence induces a belief in the agency, the corporation, like an individual, would be bound by his acts, whether the agent was lawfully appointed or not. The law will not sanction the fraud of a corporation, sooner than that of an individual. So too in cases of implied contracts. In some of these cases the contract implied is a mere fiction of law invented for the purposes of justice. When the law implies a contract, it implies a valid contract, a legal undertaking, and consequently it must and does imply every thing that is necessary for that purpose. If a writing be necessary to evidence the contract of the corporation, the law implies the promise in writing upon the same principle that it implies the promise by parol in the case of an individual. Both are equally fictions, and the one can as properly be implied as the other. The cases of parol agreements by the duly authorised agent of a corporation, and the cases of implied contracts, are perfectly consistent with the principles now contended for. The cases of implied contracts prove that a corporation may contract without its seal; that is, without deed; and it is on this ground that assumpsit is maintained on [**129]  them. But they do not prove that such contracts need not be in writing. They do not touch that question. If, however, the court should be of opinion, that "the satisfaction" of the president and directors might be declared by parol, and need not be evidenced by writing, yet it is contended, that such parol acceptance must be proved to have been made by the president and eight directors duly assembled; and that the mere possession of the instrument in the manner and at the time stated in the exception, is not of itself sufficient evidence of such parol acceptance. It may be admitted for the sake of this argument, that in the case of an individual obligee his possession of the instrument is of itself sufficient evidence of the delivery without the aid of any other circumstance, provided the signing and sealing by the obligor be proved or admitted. Yet this proposition can hardly be deemed a settled one in regard to a deed, and is well worthy of the deliberate consideration of this court, before it is here pronounced to be a general rule of law. Bull. N. P. 250. Talbot vs Hodson, 7 Taunt. 251, (2 Serg. & Lowb. 91.)

But conceding the proposition to be true in the case of an individual,  [**130]  it is denied that the same rule can apply in this case. The reason of the rule would fail--1. The bond in question is declared upon as a bond dated March 30, 1805. In order to support the declaration it must be proved as a bond of that date. 5 Bac. Ab. 159, 160. Now in the case of an individual obligee there is at the date of the instrument a person in existence and in a condition, to accept, and no steps are necessary to be taken by him to obtain a proper attitude for receiving it, when the delivery is tendered. But in this case something more was necessary than the mere existence of the corporation. There must also have been a board convened consisting of the president and eight directors, in order to accept this bond. There must have been a board larger in number than that required for the ordinary purposes of the bank; for the president and five directors are authorised to make ordinary discounts, which is the usual and chief business of the bank. There is no evidence that a board competent to accept was in actual existence, that is, assembled together on the day averred in the declaration; on the contrary, the minutes of the bank go to show there was no such board on that day.  [**131]  Yet the plaintiffs insist that the jury may, from the fact of possession in 1819, presume a delivery and acceptance on the 30th of March, 1805, without offering any evidence that, on the day last mentioned, the obligees or any body for them, were in a condition capable of accepting. Jackson vs Phipps, 12 Johns. 418, 422. 2. In the case of an individual obligee the bond cannot be delivered to him as an escrow. Whatever conditions may be annexed to the delivery by the obligor when he delivers it to the obligee, the bond is absolute according to its tenor the moment it is accepted into the hand of the obligee. When, therefore, the obligee is found in possession of the instrument, it is not a matter of speculation, nor even a subject of proof, whether it is an escrow or an absolute deed. If it came into his hands from the obligor, or by his authority, the delivery by operation of law is absolute and not an escrow. His possession, therefore, may be deemed evidence of an absolute delivery, because it could not come into his possession without his consent to receive it; and if he accepted, it was, when accepted, necessarily an absolute deed and not an escrow. In the case of an individual [**132]  then, a lawful possession by the obligee is inconsistent legally with any other state of things than an absolute delivery and acceptance. It cannot, lawfully, get into his hands but as the deed of the obligor, and the law will not presume that the possession was unlawfully obtained. But in this case it is entirely otherwise. The bond may, and perhaps must, come into the possession of the president and directors as an escrow. It must come into the hands of the president and directors before they can pass judgment on its sufficiency; and after it is in their possession, the law makes it an escrow until they have declared their approval in some way. This instrument, then, may have come into their hands originally as an escrow; their possession is consistent with its being an escrow. How, then, can that possession be evidence that it is not an escrow, but an absolute deed? As they would, in the ordinary course of business, obtain possession of it as an escrow, it would seem to follow, that it should be presumed to be an escrow until the plaintiffs prove that its character was changed; at all events the possession is consistent with its being an escrow as well as it is consistent with its [**133]  being an absolute deed. The possession, therefore, cannot be evidence that it was not an escrow, but an absolute deed. If there was not a board to act upon it, when it was received, it would naturally and properly be placed where it was found until the board did act upon it. Indeed, it does not appear from the testimony to have been out of the possession of the cashier, who was the principal obligor; and nothing can be inferred from his acting as cashier afterwards, for it appears in evidence that he acted as cashier for more than two months before the bond is alleged to have been given. 3. There is yet another distinction between this case and a bond to an individual obligee. This instrument could not be accepted by the corporation aggregate; that is, by the stockholders themselves: it could not be accepted by agents or officers appointed by them, for they had not the power to make an election, as a corporation, until the first Monday in July, 1805. The persons named, or the president and any eight of them, were the agents, constituted by law to act in behalf of the corporation. It was a special authority conferred by law, and in all cases of special authority, the power given must [**134]  appear in the proceedings to have been strictly followed. The chancellor is, by law, the agent of the obligee, to approve and accept for him a writ of error bond. The county court has the like authority in appeal bonds; yet it never has been supposed that such a bond, found in the custody of the officer of the court among the "archives and valuable papers of the court," was of itself evidence that it had been approved and accepted by the chancellor, or the county court, without the aid of any other circumstance. It is believed it never can be so held in the cases of writs of error bonds and appeal bonds, and this case is, in principle, perfectly analogous to these cases. It may, also, be added that in the case of an absolute deed, or a bond for the payment of money, the party obligee or grantee being in possession, may be presumed to have accepted it, because it was for his benefit to accept it. But, in this case, unless the security was good, it was not for the benefit of the corporation to accept it, and there is nothing in the case to show that the security was good; and no argument can be drawn from the fact of Higginbothom's continuing to act as cashier, for it is in proof that [**135]  he acted as cashier for more than two months without any bond. For aught that appears in the case, it may have been the interest of the corporation to refuse this bond and demand better security. But, conceding for the sake of the argument, that the possession is sufficient evidence that the instrument was delivered and accepted; yet it is denied that it can be evidence of the delivery and acceptance on the day it bears date, which is the day alleged in pleading by the plaintiffs, &c. to be proved by them. In the cases in which it has been held that a deed shall be presumed to have been delivered on the day it bears date, it will be found (or is to be inferred from the period at which the decision was made) that the deed upon the face of it purported to be delivered on that day. The bond, in the body of it, usually, and, indeed, always certifies, that it is sealed on that day. The subscribing witnesses certify that it was "sealed and delivered" in their presence. The old deeds, therefore, and most of the modern, bear on the face of them the evidence that they were completely executed on the day they bear date. Of such deeds it may reasonably be predicated that they were executed at [**136]  the time they profess to have been executed; and it is of such deeds, it is believed, that the courts speak when they say it is to be presumed they were executed on the day they bear date. But, this instrument, although it professes to have been sealed on March 30, 1805, does not purport to have been delivered on that day; and, indeed, does not on the face of it contain any evidence that it was delivered at all. It does not, therefore, come within the reason of the rule. Again; in all of the above mentioned cases there was a body in existence and in a condition to accept on that day; and it so appeared. But, in this case, there is no such evidence; and, indeed, it would appear from the proceedings of the bank, that there was not on the 30th of March, 1805, a meeting of the president and eight directors. Moreover, it is believed that in all of the cases in which the rule is laid down, the precise day of the delivery did not materially affect the rights and obligations of the parties. The date of the delivery was not of the substance of the contract. But, in this case the time of the delivery and acceptance is of the very essence of the contract. The whole extent of the defendant's liability [**137]  depends upon the time it was accepted. The time is not less material than his signature and seal; and it would seem to be just as reasonable to presume his signature and seal, because the obligee was in possession, as to presume the precise time of delivery, in the absence of all proof as to that time. The possession itself may be considered as equivocal, for it seems to have been in the possession of the principal obligor, and in his power and under his control until 1819. The instrument in question is a common law instrument, and to be proved and established according to the principles of the common law. No argument can be drawn from promissory notes and other instruments of modern invention, which are not governed by the rules of the common law. In fine, this is the case of a surety; it is one of that class of cases in which the rights of the plaintiffs are strictly scanned and no implication or intendment made to the disadvantage of the defendant. Miller vs Stewart, 9 Wheat. 702, 703. The first division of the argument, that is the points arising on the plea of non est factum, is here concluded. As these questions seemed to depend on the application of general principles, in the [**138]  absence of adjudged cases, on the very points in controversy it was supposed that it would be more satisfactory to the court to state the argument somewhat at large. Except the case decided by Ch. J. Marshall, there is, perhaps, no case directly on any of the points in controversy, on this part of the subject. The other points of the case will be more briefly disposed of.

2. As to the duration of the bond. The points under this head of the argument arise on the demurrer to the first breach assigned in the replication to the first plea. The defendant's 1st plea is general performance. The plaintiffs reply, and assign as the first breach the embezzlement by Higginbothom of $ 50,000 on various days and times between the date of the bond (March 30, 1805,) and the 25th of May, 1819. The defendant demurred to this breach, and the judgment of the court below was in his favour. If the breach assigned was too large, that is, if the condition of the bond did not cover the whole space of time, the plea was ill on demurrer, and the judgment of the court, therefore, right.

It is insisted that the breach assigned was too large, upon the following grounds: 1st. It is contended, that if [**139]  the instrument in question be the bond of the appellee, yet he was not thereby liable as the security of Higginbothom for any embezzlement which took place after the first Monday in July, 1805, at which time a new election of directors took place. The charter directed that the affairs of the corporation should be conducted by the president and directors; see sect. 7. By sect. 6, the persons there named are to act as the president and directors until the first Monday in July 1805, and until a new election of directors. By sec. 8, the directors for the time being have power to appoint a cashier and such other officers and servants under them as may be necessary for executing the business of the corporation. The cashier then was one of the servants under the directors, to enable them to execute the business of the corporation. The business of the corporation was to be managed by these directors until the first Monday in July 1805, and no longer--provided the new election took place on that day. Now as the president and directors were appointed for a limited time, and to perform certain duties, and the cashier was a deputy or servant under them to aid in the performance of those duties,  [**140]  it is insisted that his appointment cannot endure longer than that of the appointing power. In other words, as the directors themselves had no power to manage the business of the corporation after the first Monday in July 1805, they could confer no power to do so, on any agent or servant, by virtue of their appointment. They could give no greater power to their servant, the cashier, than they themselves had. The law indeed might authorise them to appoint for a longer time, but as the law does not profess to confer such a power, the question must depend upon the general doctrine of principal and deputy. The principles above stated will be found to be established by the following cases: Lord Arlington vs Merricke, 2 Saund. 411. Liverpool Water Works vs Atkinson, 6 East, 507. The King vs Corporation of Bedford Level, Ib. 363. Wardens of St. Saviour's vs Bostock, 5 Bos. & Pull. 175. Hassell vs Long, 2 Maule & Selw. 363. Peppin vs Cooper, 2 Barn. & Ald. 431. Leadley vs Evans, 9 Serg. & Lowb. 306. It is not necessary to enquire whether the president and directors might not so have taken the bond as to hold the security bound for a longer peri-riod. The above cases, it is conceived, abundantly [**141]  show, that the bond in question cannot be construed to hold the surety liable beyond the time to which the appointment itself was limited. 2dly. But if it be even conceded, for the sake of the argument, that the above proposition cannot be maintained upon the principles and authorities above stated, yet it is insisted that the defendant was not liable for any embezzlement which took place after February 6, 1817, when the first charter expired. It may be admitted, that the defendant is liable to the new corporation, to the full extent of any contract he made with the old one, no matter whether the breach occurred before or after the expiration of the first charter. But it is contended that his contract could not be enlarged by the renewal of the charter. His liability as security could not be increased without his consent. It could not be made to extend to times or things for which he had not contracted. When he entered into the contract it is very clear that as the law then stood he could not be liable beyond February 6, 1817. The days of the corporation were numbered, and they ceased to exist on that day. They could, by no possible interpretation of the charter, appoint a servant [**142]  for a longer period. They could have no servant after that time; for there would, as the law then stood, be no master to serve. Can a new law enlarge the liability of a surety without his consent? Is the contract to be expounded by the law as it was when the contract was made? Or, is it to be interpreted by laws passed afterwards? It is believed that the answers to these questions can hardly be a matter of doubt. And the following cases, (if cases be necessary on such a point,) it is hoped, will be deemed conclusive. Fell on Guar. 116, 117, (note.) Barker vs Parker, 1 T. R. 287. Miller vs Stewart, 9 Wheat. 702. United States vs Kirkpatrick, Ib. 733. Strange vs Lee, 3 East, 490. Dance vs Girdler, 4 Bos. & Pull. 34. Ludlow vs Simond, 2 Caine's Cas. in Error, 1. The present case bears a very strong analogy to that of Barker vs Parker, 1 T. R. 287. There, a bond was given with condition that a clerk should serve faithfully, and account for all money, &c. to the obligee and his executors. After the death of the obligee, the executors continue the business and retain the clerk in the same employment. It was held, that the obligor was not liable for money received by the clerk in the service [**143]  of the executors. Lord Mansfield says, "This is a very plain case. The service in the contemplation of the parties, was the service of the testator. There was no idea then of carrying it further." Now, in the present case the contract of the defendant was to secure the fidelity of a servant in the service of a corporation. This corporation is a legal, artificial being, depending entirely for the commencement, duration and termination of its existence upon the power creating it--the legislature. At the time this contract of the defendant was made, there was a legal statutory life assigned to this legal, artificial being. Was not then the service, in the contemplation of the parties, a service during the life of this artificial being, as this time was limited at the time of the contract? Was there any idea then of carrying it further? When the charter was renewed, the corporation became, with regard to the defendant in this cause, precisely like the executors with regard to the defendant in the case of Barker vs Parker. They were, as to him, the executors of the old corporation, retaining the same servant in the same employment.

3. Points on Evidence. 1. The first question under [**144]  this head is presented by the plaintiffs' second bill of exceptions. Was Henry Payson, who at the time of the trial was a stockholder in the bank, and therefore to gain by a verdict for the plaintiffs, a competent witness? 1st. It is in the first place insisted that upon the general rules of evidence he was not competent to testify in support of his own interest. 2dly. It is insisted that he was not excepted out of the general rule by reason of being the depositary of the by-laws. For it appears by the exception that he ceased to be the president on the 27th of May, 1819, and consequently at that time ceased to be the depositary. 2. The second question of evidence is under the plaintiffs' third bill of exceptions, upon the admissibility of the writing offered as the by-laws of the corporation. The court refused to suffer the writing to be read in evidence as the by-laws of the corporation. It was offered as containing the written by-laws of the corporation. It is contended, 1st. That by-laws, ex vi termini, in modern times mean written enactments, and the power given by the charter ought to be so interpreted. The cases where they have been suffered to be proved by parol, were the cases [**145]  of ancient corporations, and when the writing might be presumed to be lost. 2dly. The evidence stated in the exception does not prove that the entire paper offered was adopted as the by-laws of the corporation. And it was that particular paper, and the whole too of that particular paper, that was offered to be read as the written by-laws of the corporation. It is not identified by any of the witnesses, as the paper adopted and passed by the corporation as their by-laws. 3dly. The paper itself on the face of it, purports to be the by-laws of the association and not of the corporation--See art. 18, and art. 26. The parol evidence was offered to contradict the writing. If the corporation adopted similar by-laws by parol, and by-laws can be proved by parol, then the witness ought to state in words the contents of the parol by-laws. The written by-laws of the association could not be read as evidence of the parol by-laws of the corporation. It will be noted that the heading to by-laws is not in the book produced, and rejected by the court, as stated in the exception.

The last question is on the admissibility of the books. If the court below were right in their direction upon the plea [**146]  of non est factum, they are then clearly right in this opinion. For it would be absurd to admit evidence to prove damages for the breach of the condition of a bond, when the bond itself was not proved--when there was no contract to be broken, and consequently no damages to be claimed for a breach. If, however, the court erred as regards the issue of non est factum, yet it is insisted that the said books were not admissible for the purpose for which they were offered. 1. The general superintendance and direction of Higginbothom, mentioned in this exception must, unquestionably, be understood to mean, his general superintendence and direction as cashier. There is no evidence that he directed the particular entries, or even saw them or knew that they were made. The cashier's duty of superintendence is precisely like the president's, and nobody supposes that the president is responsible by reason of his superintendence, for the false entries alleged to exist in the books--Art. 18, 19. 2. The entire books were offered, and not particular items, and a part of the entries in the books were made by a witness still living. The relaxation of the rule as to the handwriting of an absent witness,  [**147]  it is contended, is confined to the single case of an instrumentary witness, and has never been carried farther. The books could not, therefore, be read unless the living witness was called to prove his entries, and for the best reason--because he would be able to explain why they were made. Cooper vs Marsden, 1 Esp. Rep. 1. 3. The books were offered, not only to show that they contained false entries and omissions; but also, to prove by the books that such false entries, &c. occurred therein by the neglect and fraud of Higginbothom. Now, although the books might show false entries and mistakes, they could not show that they occurred by the fraud or neglect of Higginbothom; and being offered for a purpose for which they were clearly incompetent, they were properly rejected by the court. They could not, in any view of the subject, be evidence to charge the defendant, unless they were coupled with an offer to prove, that the entries spoken of were occasioned by his neglect of duty, or that he knew their falsehood, and connived at it--no such proofs are offered; the books are offered by themselves, and it is not even said that it was the duty of Higginbothom to inspect them. 1 Starkie,  [**148]  50, 51, 305, 306. 2 Starkie, 41 to 47, 401, 403, 406. 3 Starkie, 1300, tit. Res inter alios. If the cashier could have performed his duty, and yet these false entries have been made, the court will presume that he did perform his duty; they will not presume fraud. The case of the Manhattan Company vs Lydig, 4 Johns. Rep. 377, shows that when ordinary and legal diligence was used by the bank, still such false entries may occur, which might have been prevented by extraordinary diligence. And when it is stated, as it is in that case, that the bank was not bound to use any extraordinary diligence to detect and prevent the false entries of its book-keeper, it necessarily follows that the cashier was not bound, he being the principal officer of the bank, and the bank being clearly responsible for any omission of duty on his part. It is, also, to be remarked that Spencer, J. in delivering the opinion of the court in the above cited case, observed, that the bank had pursued the usual and uniform method, and could not be subjected to the charge of negligence, which they certainly would have been had it been the duty of the cashier to exercise such extraordinary diligence as would have enabled [**149]  him to discover the false entries of the book-keeper. The truth is, and everybody, in the slightest degree acquainted with such matters, knows, that the exercise of such a degree of diligence on the part of the cashier, would be utterly incompatible with a faithful performance of the ordinary and important duties of that officer. It is scarcely considered necessary to assign any reasons why the books are not admissible, in this case, as the books of a corporation. It will be perceived, by the court, that all the elementary writers on the subject, of the most approved authority, lay down the rule broadly, that the books of a public corporation are only evidence as between the members, and not as between the corporation and a stranger. By stranger is meant any one who is not a member of the corporation. In the present case, every one is a stranger who is not a stockholder in the bank. The cashier, as such, is not a member of the corporation. He may be a stockholder, and thus a member of the corporation, and the books might, for some purposes, be evidence against him. But it would be in his character of stockholder, and not in his character as cashier, in which he is as much a stranger,  [**150]  as to this point, as if he had never been within the walls of the banking house. Starkie on Evidence, 297 to 300. Philips, 319. This is a fortiori, true with regard to the surety of the cashier. Upon a view, therefore, of the whole case, it is submitted that the judgment of the county court, on all the points, was right, and ought to be affirmed.

Curia adv. vult.  

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

OPINIONBY:
BUCHANAN 

OPINION:

 [*404]  BUCHANAN, Ch. J. at the present term, delivered the opinion of the court. At the trial of this cause in the court below, six bills of exceptions were taken on the part of the plaintiffs, upon which this court is called on to decide. The suit was instituted upon an instrument of writing, purporting to be a bond, executed on the 30th of March, in the year 1805, to the plaintiffs, by Ralph Higginbothom, in the character of cashier of the institution, as principal, and the defendant and others, as his sureties. The declaration is in the usual form of debt on bond. The defendant, among other pleas, pleaded in the first instance general performance. The plaintiff replied, assigning various breaches, and [**151]  several issues were joined, both of fact and in law, to which it is not necessary here to advert. In this state of the pleadings, the cause was continued by consent from term to term, with leave to the parties to amend their pleadings, until the term at which it was tried, when the defendant, by his counsel, asked leave of the court to amend his pleadings, by filing a special plea of non est factum, which was objected to by the counsel for the plaintiffs. But the court overruled the objection, and permitted the defendant so to amend his pleadings; which forms the subject of the first exception.
The grounds of objection to the plea being received at that stage of the cause, are--First. That it came too late. Second. That it is inconsistent with the defendant's plea of general performance, and other pleas; and Thirdly. That it is against the eleventh and thirty-third standing rules of that court.
As to the first of these grounds, it might be sufficient to observe, that it is a general issue plea, and like other general issue pleas, need not be pleaded before the rule day, but may be received when the cause is called up for trial, and did not therefore come [**152]  too late in this case. In addition to this, it is not at variance with the eleventh rule of the court, which expressly provides, that "the general issue plea may be pleaded by the defendant at any time before judgment by default is entered against him, although he hath not pleaded before the rule day;" and also that "it will never be considered as a reason to delay the trial." And by the act of assembly of this state of 1809, ch. 153, s. 1, it is declared, "that the courts of law shall have power to order and allow amendments to be made in all proceedings 

 [*405]  whatever before verdict, so as to bring the merits of the question between the parties fairly to trial; with the further provision, that "in all cases where amendments are made, the adverse party shall have time to prepare to support his case; but the case shall not be continued to the next term, unless the court shall be satisfied that the same is necessary." That the court then had authority to permit the amendment objected to, so far as concerns the time at which the plea was offered, is unquestionable. And the argument directed against that authority, drawn from the supposed surprise and hardship on the [**153]  plaintiffs, would be more applicable to an objection to the forcing a plaintiff in such a case into an immediate trial, which is not presented by any thing appearing in this record; the question arising on this bill of exception, not being whether the plaintiffs were improperly forced into the trial of the cause at that time, but whether the plea was properly received. Besides, under the 11th rule referred to of the court, the filing a general issue plea, when a cause is called up for trial, is not of itself a cause of continuance. And although by the act of 1809. ch. 153, when an amendment is made at the trial, time is to be given, during the term, to the adverse party to prepare to support his case; yet the cause is not therefore to be continued, unless the court shall be satisfied that a continuance is necessary. And there is nothing to show, either that a continuance of the cause, or time to prepare to support their case, was asked for in behalf of the plaintiffs, and refused by the court, or that they were forced into an immediate trial unprepared; on the contrary, the record exhibits an objection only to the plea being received, and that, on the three grounds stated in the [**154]  bill of exceptions, that it came too late, was inconsistent with the defendant's other pleas, and against the 11th and 33d rules of the court. Moreover, the cause appears to have been continued from term to term for several terms, to that at which it was tried, not under a rule on either party, but by consent, with leave generally to the parties to amend their pleadings; so that in receiving the plea, there was no surprise or hardship on the plaintiffs to be complained of.
But if it rendered a continuance of the cause, or further time to the plaintiffs during the term, for preparation, necessary, 

 [*406]  which continuance or time was an application refused by the court, an objection would more properly have laid to such refusal.
The second ground of objection. The incompatibility of the pleas of general performance and non est factum, is equally untenable. Whatever apparent inconsistency there may be between such pleas, it is not of a character to prevent their being received; and such has been the practice of permitting them, under the construction of the statute, 4 Ann, ch. 16, that it may now be considered a settled rule or law of pleading.
To confine the defendants [**155]  to pleas strictly consistent, would be greatly to narrow the benefit of the statute; as a special, and a general issue plea, could in such case, seldom, if ever, be pleaded, the latter always denying, and the former generally confessing and avoiding the charge. And as the statute itself makes no such distinction, it is not by construction limited to strictly consistent pleas; but the chance is given to the defendant of succeeding, not only on the strength of his own case, but on the weakness also of the plaintiffs, by permitting apparently incompatible pleas to be pleaded--as not guilty, and accord and satisfaction; not guilty, and son assault demesne; not guilty, or non assumpsit, and the statute of limitations; non est factum and payment; non est factum and general performance, &c. Hence the common form of pleading such pleas, to be found in the most approved books of entries, and the many cases in the books of reports in which they have been received. Of which the case similar to this in Wright vs Russell, 3 Wils. 536, may be taken as an apposite example; where after the pleas of non est factum and performance, judgment was given for the defendant on [**156]  his demurrer to the plaintiff's replication.
Non assumpsit, or non est factum, and a tender, are not permitted to be pleaded, on the ground, that one goes to deny the existence of any cause of action, and the other admits it; and that if the general issue should be found for the defendant, it would appear on the record in the action of assumpsit, that no debt was due, in the face of the defendant's admission by the plea of tender, that something was due; and in the action of debt, that there never existed such a bond as that declared on, when the plea of tender admits something to be due on that 

 [*407]  very bond. Maclellan vs Howard, 4 Term. R. 194. Jenkins vs Edwards, 5 Term. R. 97. But the pleas of general performance and non est factum, though apparently inconsistent, cannot produce on the record the same incongruity, both going to deny the plaintiff's whole cause of action. And the general issue and a tender, are the only pleas that are now disallowed on the mere ground of inconsistency; (1 Chitty's Plead. 541, 542. Step. on Plead 293, 459;) unless it be by the 33d rule of the court, that seems to have been relied [**157]  upon, declaring "that no incompatible pleas shall be received;" but which is certainly at variance with the well established practice on the subject of pleading, and inconsistent with that due exercise of discretion, which is required of the courts of this state by the act of 1809, ch. 153, giving them power "to order and allow amendments to be made in all proceedings whatever before verdict, so as to bring the merits of the question between the parties fairly to trial;" since under that rule (if of binding authority,) a plea necessary to the bringing the merits of the question between the parties fairly to trial might be excluded.
The discretion vested in the courts by that act, is not a capricious, but a sound legal discretion, to the proper exercise of which the party claiming it is entitled, and from which he cannot properly be debarred, by any rule that is the mere creature of the court; and the permitting the amendment proposed in this case to be made, was, we think, a proper exercise of that discretion, according to the spirit and intention of the acts, and the settled practice, in relation to the pleading a special and general issue plea, although apparently inconsistent,  [**158]  notwithstanding the 33d rule, which was properly dispensed with.
The questions presented by the second and third bills of exceptions taken by the plaintiffs, arise on points of evidence. The first as to the competency of a witness produced on the part of the plaintiffs; and the second on the admissibility of a writing, headed "By-Laws," which was offered to be read on the part of the plaintiffs, as and for the by-laws of the corporation, under which the president and directors acted, and as prescribing, among other things, the duties of Ralph Higginbothom (the principal in the bond,) while he was in their employment as cashier. Henry Payson, the person produced 

 [*408]  as a witness, being proved to be a stockholder in the bank at the time of the trial, his testimony was objected to, for any purpose but to prove himself a stockholder; and rejected by the court on the ground of interest.
It is admitted, upon general principles of evidence, that in a suit brought by a bank, one who is a stockholder, and interested in the event of the suit, is not a competent witness in behalf of the institution. But that general rule is not without exception; for though an [**159]  interested corporator cannot be received to testify generally for the corporation, yet it does not therefore follow, that he is competent for no purpose; but he may be placed in a situation to render him a necessary and competent witness for some purposes. Of which the case of The King vs The Inhabitants of the township of Netherthong, 2 Maule & S. 337, is an appropriate example, where a rated inhabitant of the township of Netherthong, whose interest was admitted, was called by the respondents, and was held to be competent to give evidence as to the custody of a certificate from the township of Honley, (which was produced,) acknowledging the pauper's grandfather and father to belong to Honley, in accordance with the decision in another case, that was mentioned by Lord Ellenborough.
Payson being a stockholder in the bank, was not a competent witness for the plaintiffs for all purposes; but he was offered to prove, among other things, that he was the president of the bank from the 27th of April 1812, until after the 27th of May 1819; that as such, he was the depositary of the bank; and that during the time he was president, a certain book called the [**160]  By-Laws, was one of the books of the bank. And if an interested corporator is competent to give evidence in behalf of the corporation, as a depositary of the muniments, in relation to his custody, of a paper produced as one of the muniments, why was not Payson within the exception to the general rule, and competent to prove himself the depositary of the book called the By-Laws, as a muniment of the bank? The only argument urged against his competency, as being within the exception is, that at the time he was called as a witness, he appears from the plaintiffs' own offering to have ceased to be the depositary. But that, it is conceived, makes no difference, and that he was 

 [*409]  a competent witness to identify the book as a muniment of the bank, during the time that he was the despositary, Higginbothom, too, then acting as the cashier, and being a witness for that purpose, that he ought not to have been rejected as incompetent to prove any of the matters for which he was offered.
He was not competent to prove that it continued to be one of the books of the bank, after he had ceased to be the depositary, and when he stood only in the relation of a stockholder in the bank,  [**161]  any more than any other stockholder. But admitting the existence as to depositaries, of the exception to the general rule of evidence, no reason is perceived, why his having ceased to be the depositary at the time he was called as a witness, disqualified him from proving the book produced to have been a muniment of the bank, while he was the depositary; the nature of his interest as a stockholder not being changed, but remaining the same as it was, while he continued to be the depositary.
The objection to the admissibility of the writing headed "By-Laws," is, that they purport, upon the face of them, to have been the by-laws of the banking association, styled "The President and Directors of the Union Bank of Maryland," when the business was transacted under the articles of association, and before the act of incorporation, and that they do not sufficiently appear to have been adopted by the corporation as their by-laws."
By the ninth section of the charter the president and directors, for the time being, are authorised to make all such rules, orders, by-laws and regulations, for the government of the corporation, its officers and servants, as they, or a majority of them, from [**162]  time to time may think fit, and the same at pleasure to revise, alter and annul. It may here be admitted, that the charter contemplates written by-laws; and then the question is, whether these are the written by-laws of the corporation?
They are in writing, and if they were ever adopted by the president and directors, or a majority of them, as by-laws for the government of the corporation and its officers, they became, by such adoption, the written by-laws of the corporation. It appears from the statement of the evidence, that the book marked By-Laws, from which the writing objected to was offered to 

 [*410]  be read, was one of the books of the corporation, and that, in which the proceedings of the president and directors were entered, from the time the charter was obtained, until the year 1819, so far as they were reduced to writing, and that there was no other book, in which their proceedings were entered during that period, nor any other writing or memorandum of their proceedings. One of the witnesses, the cashier who succeeded Higginbothom, in the year 1819, and after other by-laws had been adopted, proves, that when he went into the bank, he found the same book among [**163]  the other books of the corporation, and that it had in bank the reputation of being the former by-laws and minutes of the corporation. If then there were any by-laws of the corporation, they were contained in that book, and were they that were offered to be read, and were rejected by the court--there were none other.
It is contended, 1st. That there is no evidence that the entire writing, headed "By-Laws," was adopted as the by-laws of the corporation. And 2d. That there does not appear to have been any entry or memorandum of such adoption, among the minutes of the proceedings of the corporation.
As to the first of these positions. The writing, headed "By-Laws," consists of 26 articles, the witnesses who were examined in relation to their adoption, had each of them been a director under the charter, except two who had been clerks; and the proof is, that the 19th article prescribing the duties of the cashier, which, in truth, is all that is material in this part of the case, was required by the corporation to be particularly observed; and that Higginbothom, acting as the cashier, after the act of incorporation, was in the habit of observing, or of professing to observe it,  [**164]  but that he did not perform the duties with regularity. With regard to the rest, several of the witnesses, taking their testimony together prove, that the government and proceedings of the bank were in conformity with all of them, with the exception only of the 20th and 23d, concerning which they have no distinct recollection, and which have no relation to the duties of the cashier; some, that the direction and government of the bank was in general in conformity with them; one, that when he was elected a director, in 1817 or 1818, he inquired for the by-laws, and that a book or paper 

 [*411]  was delivered to him by an officer of the bank, containing by-laws similar to those in question; that he remembers them, among other things, from the fact, that questions sometimes arose at the board, as to what were the rules in particular cases, which were decided agreeably to the by-laws offered to be read; and because the regulations and government of the bank corresponded, while he was a director, and until other by-laws were adopted in 1819, with the system prescribed by the articles, headed "By-laws." And another, that when he was sworn in as a director, between the years 1806 and 1811,  [**165]  or about that time, certain by-laws were handed to him, as proper to be read by him as a director; but does not prove that these are or are not the same; and it appears that all the articles, headed "By-Laws," and many of the minutes entered in the book, entitled, "By-Laws," which was kept by Higginbothom, as cashier, were in his handwriting. This is the substance of the material part of the oral testimony stated in the third bill of exceptions, and it seems to us to be quite sufficient to show a practical adoption by the corporation of the articles, headed "By-Laws."
As the book, in which they are written, was one of the books of the corporation, and the only book in which any of the proceedings of the president and directors were entered, from the time the charter was obtained until 1819, and as there was no other writing or memorandum of their proceedings, it was necessarily the book that was put into the hands of the two witnesses, when they first went into the bank as directors. And what circumstance could be stronger to show, that the writing or articles, headed "By-Laws," had before been adopted by the corporation as such, than the delivery of the book containing them,  [**166]  by one of its officers, to a newly appointed director, on his inquiring for the by-laws, and their being handed to another, on the occasion of his being sworn in, as proper to be read by him as a new director? The testimony of each of those witnesses goes to the whole writing, and not to any particular article. It was put into their hands to read, as containing a system of by-laws, not confined to one portion more than another, but embracing all the articles of which it consists. And although they do not identify the writing produced, 

 [*412]  by swearing it is the same which they saw in the bank, and of which they speak; yet its identity is sufficiently established by the proof, that the book containing it was a book of the corporation, in which the proceedings of the president and directors were entered until the year 1819, and that there was no other in which any of their proceedings were entered, nor any other writing or memorandum of their proceedings before that period. The testimony then of these witnesses, clearly relates to the articles headed "By-Laws," and evinces the understanding at the bank upon the subject, and the light in which they were viewed. And the proof by [**167]  some of the witnesses, that the direction and government of the bank was generally in conformity with the system they prescribe; by one, that the regulations and government of the bank, corresponded with them as a system, and that they governed the decision of questions, which occasionally arose as to what were the rules in particular cases; by some that the proceedings and government of the bank were in conformity with 24 of the 26 articles, particularly in the recollection of the witnesses; and by some, that the 19th article was required by the corporation to be particularly observed, and that Higginbothom himself, acting as the cashier, professed to observe it, form together a mass of evidence relative to the acts and general government of the corporation, conclusive of their adoption as a system, and not of particular articles merely, if they could be adopted otherwise than by writing. They were treated and acted upon as a system, and there is nothing to show that they were partially adopted only, or that any particular articles of that general system were excepted.
But it is supposed, secondly, That an entry or memorandum in writing was necessary to their adoption by [**168]  the corporation. No reason has been shown in argument, nor can we perceive any, why their adoption may not be proved, as well by the acts and uniform course of proceeding of the corporation, as by an entry or memorandum in writing. They were originally the by-laws of an association, and an entry or memorandum would have been evidence only as an act of the corporation of their adoption; and, without the common seal, which was once held to be necessary to every act of a corporation aggregate, could 

 [*413]  no more unite the several assents of the individuals composing it, so as to make it the act of the corporation, than any other act without the common seal.
But it is admitted, that a corporation aggregate may now act without its common seal; and if so, why may not the adoption by such a corporation, of a set of written rules, (already prepared by others,) as and for its by-laws, be evidence otherwise than by writing? Where is the law substituting writing for the common seal, and declaring it to be necessary in all cases? If there is any act of a corporation that need not be in writing, it would seem to be such an act of adoption; not being a contract, but a recognition only,  [**169]  of certain written rules for its own government, and that of its officers and servants, which, when adopted, whether by writing or otherwise, become its written by-laws, speaking the sense of the corporation; and it does not appear to be material, in what manner, or by what acts, its assent to them is manifested, assuming that it need not be evidenced by the common seal.
In this case authority to make by-laws is specially delegated by the charter to the president and directors, without any direction as to the manner in which it is to be done. And if in the exercise of that authority, as the agents (under the charter,) of the corporation, they could adopt as rules for its government, the written by-laws of the former associations, which is not denied, it was no more necessary to be done in writing, than the acts of any other duly appointed and authorised agents. And it will not be contended, that an agent, duly authorised and appointed by a corporation, can only act or contract by writing.
But authorities are not wanting to sustain the position, that acts or contracts of corporations may be proved otherwise than by writing, and may be inferred from other corporate acts; two only of [**170]  which will now be noticed, which are we think conclusive upon this point of the case. The Bank of Columbia vs Patterson's Adm'rs. 7 Cranch 299, and Whittington vs The Farmers Bank of Somerset and Worcester, 5 H. & J. 489. The Bank of Columbia vs Patterson's Adm'rs. was an action of assumpsit, by Patterson's administrators, for work and labour done by their intestate, for the bank, growing 

 [*414]  out of a sealed agreement between Patterson, and an authorised committee of the directors of the bank, in their own names. There was no entry or memorandum in writing produced, of the adoption by the corporation of the contracts of the committee, nor of any vote for the payment of the money. But it appearing that the corporation had from time to time paid money on the contracts to the intestate, and that they were for the benefit of the corporation, the court said the jury might from that evidence "legally infer, that the corporation had adopted the contracts of the committee, and voted to pay the whole sum which should become due under the contracts, and that the plaintiff's intestate had accepted the engagement." And in Whittington  [**171]   vs The Farmers Bank of Somerset and. Worcester, it was decided by Worcester county court, and on appeal affirmed by this court, that it was not necessary an order of the president and directors should be in writing to give it validity, but that it might be proved, if not reduced to writing, by oral testimony.
But the proof in this case of the adoption by the corporation of the writing produced, as its by-laws, does not rest entirely on oral testimony. There is among the minutes of the proceedings, which were produced, a written recognition of them in these words: "Whereas by an act to incorporate the stockholders in the Union Bank of Maryland, it is among other things enacted, that an election for sixteen directors to conduct the affairs of said bank, shall be annually held on the first Monday in July: And whereas the said first Monday in July may sometimes fall on the fourth of said month, on which the bank will be shut agreeably to the provisions of the fourth article of the by-laws, ordained and passed for the regulation and government of the said corporation," &c. Now that this entry relates to the writing or articles headed "By-Laws," and could have related to nothing [**172]  else, is manifest, not only from what has been already said, and the proof that there were no others, but also from the language of the fourth article itself under that heading; which is in these words: "That the bank shall keep open for ordinary business, from nine o'clock in the morning till three o'clock P. M. every day, except Sundays, Christmas day, and the fourth day of July;" providing, as stated in the 

 [*415]  entry, for the bank being shut on the fourth of July. It is not indeed a resolution of adoption, nor the act by which they were adopted and made the by-laws of the corporation, but an acknowledgment that they had been previously adopted and made, and were then the by-laws of the corporation. It will bear no other construction, and it may be likened to the case of Fleckner vs The United States' Bank, 8 Wheat. 338, where a resolution passed by the president and directors of the Planters Bank of New-Orleans, declaring that an endorsement which had before been made of a note by its cashier, was made by the authority of the president and directors, and ratifying the act of the cashier, was held to be not a mere ratification of the transfer, but a binding [**173]  acknowledgment of its original validity. As here, the subsequent entry is an acknowledgment of a previous adoption, not of a part only, but of the whole writing as a system of by-laws, which are declared to have been ordained and passed, for the government and regulation of the corporation. Besides they are set out in the replication, and alleged to be the by-laws of the corporation, and violations of them, so far as they prescribe the duties of the cashier, are assigned as breaches; on which breaches issues are tendered by the defendant, and joined by the plaintiffs; so that they are virtually admitted by the defendant in his pleadings.
Two questions arise on the fourth and fifth bills of exceptions, growing out of the special plea of non est factum. 1st. Whether, there being no written acceptance produced, of the instrument on which the suit was brought, there was other sufficient legal evidence, from which the jury might have inferred that it was duly delivered by the defendant, and accepted by the plaintiffs; which is presented, both by the fourth bill of exceptions, and the first prayer of the plaintiffs in the fifth bill of exceptions. The 2d. Whether [**174]  the plea, that the supposed writing obligatory was delivered as an escrow, imposed upon the defendant the burden of proving the special matter alleged in the plea; which arises on the second prayer of the plaintiffs in the fifth bill of exceptions, and will be first examined.
It is a general principle of pleading, that where a plea produces a direct affirmative and negative, by denying the allegation 

 [*416]  in the declaration, it should conclude to the country, whether the affirmative of the issue is held by plaintiff or defendant, and that the proof of the affirmative rests on him who asserts it. But when new matter is introduced on either side, the pleading ought to conclude with a verification. Thus, in the application of these rules, the plea of general non est factum in an action of debt on a bond, which, by denying the allegation in the declaration that it is the writing obligatory of the defendant, makes the issue between the parties, concludes to the country, and throws the whole proof of the execution of the bond, including the delivery, upon the plaintiff, who in that case asserts the affirmative.
But the defendant may, under that issue, give in evidence [**175]  any thing which goes to show that the instrument of writing was originally void at common law, as lunacy, fraud, coverture, &c. or that it had become void subsequent to the execution, and before the bringing of the suit, as by erasure, alteration, &c., because the plea of non est factum puts in issue as well its continuance as a deed, as its execution; and it is enough if it was not his deed at the time of pleading. Or the defendant may plead any such special matter. But if he chooses to do so, being new matter, he must do it with a verification, and holding the affirmative, he draws the burden of proof upon himself. So if he seeks to avoid the bond, for duress, infancy, usury, &c. which cannot be given in evidence under the general issue, (the bond not being therefore absolutely void, but voidable only,) he must plead such new special matter with a verification, and the proof lies upon him. In every such case the issue is upon the matter specially alleged in the plea.
That the defendant may give in evidence, under the plea of general non est factum, that the instrument of writing was delivered as an escrow on a condition not performed, is every where to be found; and [**176]  it is equally will settled, that he may plead it specially, and that the proper conclusion to that plea is to the country; because it is a special negative to the affirmative in the declaration--the allegation in the declaration, that it is the writing obligatory of the defendant, including the allegation of the delivery of it as a deed; and it is this conclusion 

 [*417]  to the country that raises the question, whether the proof is on the plaintiff or defendant.
In Bushell vs Pasmore, 6 Mod. 218, it is said by Holt, Ch. Justice, that "all these special non est factums in case of escrow, erasure, &c. are impertinent, for thereby the defendant brings all the proof upon himself; whereas by pleading non est factum generally, he would turn the proof, of whatever is necessary to make it his deed, upon the plaintiff;" thus making no distinction between the different pleas of special non est factum as to the burden of proof. And in 2 Stark. Evid. 482; the same broad position is laid down, that "where the plea is non est factum generally, the proof is upon the plaintiff; but where the plea shows that the deed is void for special matter, the [**177]  issue is on the defendant," with a reference to the case of Bushell vs Pasmore. This writer then, adopts as a rule of evidence, the doctrine asserted in Bushell vs Pasmore, that in all cases of special pleas of non est factum, without any distinction, as per fraud, lunacy, delivery as an escrow, erasure, &c. the proof rests on the defendant.
The position laid down by Holt in Bushell vs Pasmore; is translated into 5 Bac. Ab. 373, with a marginal quere, as to the case of an escrow. We have seen it no where denied; and the force of that quere, is much weakened by the reason there given for it, "for it is his deed though delivered to another on condition." Now in such case, the instrument is not delivered as a deed on condition, but given to another as an escrow, to be by him delivered as a deed to the obligee, on a condition precedent. And it is only on the ground, that it is not his deed, that the defendant can give it in evidence under the plea of general non est factum. The plea of escrow admits the signing and sealing only, but denies the delivery as a deed, which makes an issue between the parties; and the conclusion being [**178]  properly to the country, the plaintiff has no choice but to add the similiter; and the conclusion, &c. "and so," &c. being a conclusion of law, and not issuable, the issue is upon the whole plea; and the question for the jury is a question of fact, whether it was delivered as a deed, and that depending upon the truth of the special matter alleged in the plea, which if not pleaded, the defendant could only avail himself of by 

 [*418]  proof. And what is there in the pleading the same matter that dispenses with the proof, and imposes upon the plaintiff the necessity of disproving it? It is but the assertion of the defendant in the shape of a plea, and cannot avail him, if unsustained by proof, any more than any other special matter alleged in avoidance, or which shows, if true, that the instrument of writing was originally void at common law, as for fraud, coverture, &c. or that it had become void subsequent to the execution, and before the bringing of the suit, as by erasure, &c. which it is incumbent upon the defendant alleging it to prove--every thing necessary on the part of the plaintiff, the signing, sealing and delivery being admitted, and the issue being upon the matter [**179]  specially alleged in the plea. So where the delivery as an escrow is pleaded, the issue is upon that special matter; which being alleged and relied upon by the defendant to show that it is not his deed, the proof of that allegation (he holding the affirmative,) rests upon him. And if there be no proof on the part of the defendant, the possession of the instrument by the plaintiff, is prima facie evidence of the delivery as a deed, which is all he has to show, and is sufficient to sustain the issue on his part--the signing and sealing being admitted, and the delivery as a deed, being the only matter in issue between the parties, upon the special allegations in the plea. And the plaintiff is not driven to any further, or stricter proof of the delivery, than such as is held to be sufficient under the plea of general non est factum. When it is said, that the special pleas of escrow, erasure, &c. throw all the proof upon the defendant, it is only meant, in relation to the special matter that is alleged, as operating to do away the effect of what is admitted, to wit, the signing, sealing and delivery, in the cases of erasure, &c. and the signing and sealing, in the case of [**180]  escrow, but not the delivery as a deed, which is not admitted. Therefore, if the delivery as an escrow be proved on the part of the defendant as alleged in the plea, the proof of the performance of the condition lies upon the plaintiff where the affirmative is with him.
In this view of the plea of escrow, if this was the case of any individual plaintiff, we think, in the absence of all evidence on the part of the defendant, the possession and production of the instrument of writing by the plaintiff, would be sufficient prima 

 [*419]  facie evidence of the due delivery and acceptance, to entitle him to a verdict, on the issue joined upon the sixth plea. But being the case of a corporation, it is supposed to differ from the case of an individual; and that the possession and production of the instrument by the plaintiffs, is not sufficient legal evidence of the delivery and acceptance as a deed, without some entry or memorandum in writing of such acceptance. Which leads to the inquiry, whether a written acceptance is essential to the validity of a bond executed to a corporation; and that involves the consideration of the question arising on the fourth bill [**181]  of exceptions, and the first prayer in the fifth bill of exceptions.
It is contended that a written acceptance must be produced; that nothing else will suffice; and that no other facts or circumstances, however conclusive they might be in the case of an individual, can be received to raise a presumption in favour of a corporation, of its corporate assent, or from which its adoption or acceptance can be inferred, on the broad ground, that a corporation aggregate is incapable of doing any act except by writing.
But is it true that a corporation is incapable of doing any act that is not evidenced by writing? It seems to have been formerly held, that a corporation aggregate could only act by its common seal, could do nothing without deed. But that doctrine is now no where sanctioned as a universal proposition. It has long since been held, that such a corporation may employ one in ordinary services without deed, as a cook, butler or servant, and may appoint a bailiff to distrain, without deed or warrant. 2 Bac. Ab. tit. Corporation, (E. 3,) 13. 3 Lev. 107. Anon. 1 Salk. 191. And in Harper vs Charlesworth, 4 B. & C. 575, Mr. Justice [**182]  Bayley said, "a corporation can only grant by deed, yet there are many things which a corporation has power to do otherwise than by deed. It may appoint a bailiff, and do other acts of the like nature." And it is now well settled, that it may be bound by a promise express or implied, arising from the acts of its agent, appointed and authorised by a corporate vote only, unaccompanied by the common seal.
It is said by different writers, treating of the manner in which corporations aggregate may act, that "gifts by and to them must be by deed." That "in general a corporation aggregate 

 [*420]  cannot take, or pass away any interest in lands, or do any act of importance without deed," &c. But conceding that anciently a corporation aggregate could do nothing but by deed, we have seen, that in more modern times the rule has been broken in upon, in the language of P. Williams in his argument in Rex vs Biggs, 3 P. Wms. 423, "for conveniency's sake." And in that case, which was an indictment for erasing an endorsement on a bank note, there being a special verdict, finding the prisoners guilty of the erasure, and that the note was made and signed by one Joshua  [**183]   Adams, who was entrusted and employed by the bank of England to sign bank notes, but not under the common seal, it was elaborately argued by P. Williams, that the appointment of Adams was not valid, because not made under the common seal of the corporation; and also strongly urged from the importance of the trust, and not being an ordinary employment, that if in any case whatever, an authority given by a corporation ought to be under its common seal, it was that. The prisoner, however, was condemned, and the appointment of course held to be valid. It does not appear whether the appointment of Adams was or not by writing, but it was without deed, it was not under the common seal of the corporation; and it was not a small matter, nor an appointment on ordinary service, but of an agent, employed in an important trust, and the decision too, was in the case of felony, involving the life of the accused. If it be treated as an appointment in writing, for which the case, neither as reported in Strange 18, nor P. Williams, furnishes any sufficient warrant, it shows, that the old doctrine, that a corporation aggregate must in all things act by its common seal, and can [**184]  do no act of importance without deed, is no longer regarded, that being a case of the appointment without deed, of an agent to an important trust, connected with the highest interests of the corporation; and if considered as an appointment not evidenced by writing, it is a decision very strongly applicable to this case.
It is unnecessary to multiply cases to show, that the acts of corporations may now be evidenced by writing without seal--that is fully admitted; but it is strongly urged, that although they may now act without deed, yet that their acts cannot be evidenced otherwise than by writing. And for that we have 

 [*421]  been referred to 1 Fonb. 306, (note o.) The Bank of Columbia vs Patterson's. Adm'r. 7 Cranch 299, and Fleckner vs United States Bank, 8 Wheat. 338; but they do not support the position. In the note in Fonblanque it is said, "and the agreement of the major part of a corporation being entered in the corporation books, though not under the corporate seal, will be decreed in equity." The only ground upon which such an agreement can be enforced, is the capacity of a corporation to make a contract without seal, contrary [**185]  to the ancient doctrine. But it is not there said, that a corporation can make no agreement, nor do any act except by writing; nor does the inference appear to be a ready one, that an agreement not in writing, or not entered upon the corporation books, cannot be enforced. And opposed to such an inference, is the case of The King vs The Inhabitants of Chipping Norton, 5 East 239; where a corporation at a court let, let certain tolls belonging to the corporation by a verbal agreement; and it was held, that the corporation could not pass the tolls by a verbal demise, but that it was a license to collect the tolls, and might be a ground on which to apply to a court of equity. The principle there decided, was not that the verbal agreement was a nullity, but only that it did not operate at law to pass the interest in the tolls, which could only be demised by deed; yet that it bound the corporation as a license, and was a contract or agreement fit to be enforced by a court of chancery. In The Bank of Columbia vs Patterson's, Adm'r. the court takes notice of the ancient doctrine, that corporations could do nothing without deed. But says, they may now "by mere vote, or other corporate [**186]  act not under their corporate seal, appoint an agent, whose acts and contracts, within the scope of his authority, would be binding on the corporation." Now to say, that a corporation may "by a mere vote or other corporate act," appoint an agent, is surely not to say, that it can only appoint an agent in writing, as a vote need not of necessity be reduced to writing, and "other corporate act," are very indefinite terms, and would rather seem to imply any act, whether in writing or otherwise; and the term "mere vote," would seem to import a naked vote, not clothed with the solemnity of writing. And the case itself, with the opinion of the court upon the whole 

 [*422]  case, seems to show, that the terms "a mere vote or other corporate act," were not intended to be restricted to mean, a vote or other act in writing. The contract which gave rise to the suit, was personal, under the hands and private seals of the agents of the corporation. But it appeared in evidence, that it was for the exclusive use and benefit of the corporation, and made by their agents for purposes authorised by the charter, and that the corporation had from time to time paid money on the faith of it to the plaintiff's [**187]  intestate. And from that evidence, the court decided, that "the jury might legally infer, that the corporation had adopted the contract of the committee, and had voted to pay the whole sum, which should become due under the contracts, and that the plaintiff's intestate had accepted their engagement," although there was no entry or memorandum in writing of the adoption of the contract by the corporation, nor of any vote for the payment of any part of the money. Here, then, was an unwritten act of a corporation, suffered to be inferred from other unwritten acts and circumstances. And no argument can fairly be drawn from the circumstance, that the corporation was defendant in that case; it was not put upon that ground by the court, or that the corporation might have kept any thing back, or that its recorded vote had been lost; but the decision went upon the broad principle, that a corporation might act without writing, and that its acts might be proved by circumstantial evidence; without adverting to any distinction between a corporation plaintiff and defendant. Nor could a corporation, because defendant, be presumed to do, what by its constitution it was incapable of doing. Besides,  [**188]  it will be remarked, that the jury were permitted to inter, from the facts and circumstances in the case, that the corporation had adopted the contracts, and voted to pay the money, not by a written act of adoption, or a written vote, but generally that it had adopted them, and voted to pay the money that should become due under them. And if an adoption in writing, or a written vote, had been intended, it would most probably have been so said; it is not so said, and there does not appear to be any thing in the whole case, from which it can be fairly implied. And in The King vs The Inhabitants of Chipping Norton, 5 East 239, where the case states the agreement of the corporation 

 [*423]  to have been a verbal one, which though not sufficient to pass the interest in the tolls, which from their nature could only be transferred by deed; yet it was held to be a ground for an application to a court of equity; which could not have been, if the agreement was void for want of being in writing. The case of Fleckner vs The United States Bank, does not sustain the position contended for. It is the case of a written vote of the board of directors; and the court, acting upon the facts [**189]  of that case says, the acts of such body or board, evidenced by a written vote, are as completely binding upon the corporation, and as complete authority to their agents, as the most solemn acts done under the corporate seal. It vindicates only, the binding effect of a written vote without seal, against the argument pressed at the trial, that a corporation could only act through the instrumentality of its common seal; but goes no farther, and does not touch the question, whether a corporation can act otherwise than by writing. It is admitted that in modern times corporations may act by writing without the common seal; but it is supposed, that the use of the seal grew out of the state of the times in which it originated, when seals were more common, and better known, than signatures, and the authentication of instruments by seals, was more certain, and attended with fewer difficulties and perplexities, than any other mode of authentication; and that the use of the seal is only dispensed with, because writing may now be proved with as much certainty as the common seal.
But that would seem to be a mistake, and that the greater facility and certainty, attending the authentication [**190]  of an instrument by the use of the common seal, was not the reason why it was originally held, that corporations could act in no other way. It would have been a very good reason for preferring the use of the seal, to any other less certain mode of authentication, but not a sufficient reason for rejecting all other modes; nor does it any where appear, that the rule was originally introduced for that reason. Blackstone, in his commentaries, vol. 1, page 475, says, "a corporation being an invisible body, cannot manifest its intentions by any personal act or oral discourse; it therefore only acts and speaks by its common seal. For though the particular members may express their private 

 [*424]  consents to any acts, by words or signing their names, yet this does not bind the corporation; it is the fixing of the seal, and that only, which unites the several assents of the individuals who compose the community, and makes one joint assent of the whole." It was not, therefore, as a mere rule of evidence that the common seal was required, because more certain, and more susceptible of proof than writing, or any other mode of authentication; but because it was supposed, that a corporation [**191]  being an invisible body, it was incapable of manifesting its intentions, by any personal act or oral discourse; and that having neither hand nor mouth, it could no more write than speak.
But as some mode of action was necessary to its operations, the common seal, which is incident to a corporation, was resorted to as an artificial representative; embodied in which shape, it could alone appear--the hand and mouth of the corporation, by which only it was permitted to act or speak. This technical nicety has however gradually given way to the public convenience, and the attenuated notion that the seal only was capable of uniting the several assents of the individuals composing the community, and making one joint assent of the whole, has yielded to the sober sense of mankind, which no longer delights in mere technicalities. Yet the character and constitution of corporations remaining the same, and the united assents of the individuals composing the community, being as necessary now as formerly, to constitute an act of a corporation, their assent must be proved in some way. But by what law, or on what principle, has writing been substituted for the common seal, and had imparted to it, the [**192]  magical power which it did not formerly possess, of uniting the several assents of the different individuals who compose the community? Let it be borne in mind, that at the time when the seal was alone held to be capable of performing that office, writing was necessary to show to what it was the seal did unite the several assents of the individual corporators. But the writing alone was nothing, it had no agency in manifesting the assent of the corporation, it was the thing only assented to, and the seal it was, appended to it, that spoke the presence of the corporation, and manifested its assent. If there be any law substituting writing for the common seal, and declaring it to be the only-means by which 

 [*425]  the assent of a corporation can be manifested, it has not been produced, and we know of none such; or if there be any decisive authorities establishing that position, they have not been referred to. There are many authorities showing that corporations may act without seal, among which may here be again mentioned the cases before referred to, of The King vs Bigg, (in which the corporation was not a party,) where it was held, that the Bank of England might, without [**193]  the common seal, entrust and employ a man to sign bank notes; the note (o) in 1 Fonb. 306, where it is said, "and the agreement of the major part of a corporation being entered in the corporation books, though not under the corporate seal, will be decreed in equity;" and Fleckner vs The United States Bank, in which, in speaking of a written vote of the board of directors of that bank, the court says--"the acts of such a body or board, evidenced by a written vote, are as completely binding upon the corporation, and as complete authority to their agents, as the most solemn acts done under the corporate seal." But they go no farther. Seeing then, that the seal was originally required, not for the purpose merely of authenticating the writing to which it was appended, but for the technical purpose of uniting and expressing the joint assent of the corporation which could not be done by the particular members signing their names, and that writing was not competent to perform that office, and there being nothing peculiar to modern times imparting to it that quality, it cannot be required for that purpose; but if required at all, it can only be as evidence of the acts of a corporation,  [**194]  which, like the acts of natural persons, are subjects of proof. And the seal being no longer regarded as a necessary agent, to express the intention of a corporation, by uniting the several assents of the individual members, and making one joint assent of the whole, (which it is seen may now be otherwise manifested,) by what rule of evidence is it, that corporate acts are all required to be evidenced by writing, which of itself, when unaccompanied by a seal, is only parol evidence? We know of no such rule in practice; the general principles of evidence acknowledge none such, and when the acts creating corporations, do not direct it, we do not perceive why their acts must be established, by positive record proof only; and why the corporate 

 [*426]  assent may not be inferred from facts and circumstances, which in regard to individuals, would be decisive in relation to transactions of a similar character. The question being, (now that the seal is dispensed with for that purpose,) not as to the mode of uniting the corporate assent, but as to the mode of proving the assent or act of a corporation. The proof by writing may be more eligible than facts and circumstances not reduced to [**195]  writing, because more certain, and attended with less difficulty and perplexity; but it does not therefore follow, that it is the only mode of proof that can be admitted.
If that could be received as a sufficient reason for requiring written evidence of the acts of a corporation, it would apply with equal force to the transactions of natural persons, written evidence of which would, as well as in the case of a corporation, be attended with more certainty, and fewer difficulties, than circumstantial proof. But such a principle has never been admitted among the general rules of evidence, and the acts of individuals are continually established by presumptions arising from other facts and circumstances; and that not confined to the acts of a single individual, but extending equally to the joint transactions of several, though of the most solemn and important character. And it seems to us, that (the seal being dropt as necessary to unite the several assents of the individual members,) there is nothing to show, that writing is substituted in the place of the seal for that purpose, and that the same presumptions arise from the acts of corporations, as from the acts of individuals; consequently,  [**196]  that the corporate assent, and corporate acts, not reduced to writing, may be inferred from other facts and circumstances, without a violation of any known rule of evidence. In which we feel ourselves strengthened by authorities that will here be briefly adverted to.
In The King vs Amory, 1 Term. R. 575, it is clear from the course of reasoning, both of the judges and the counsel concerned in the argument of the cause, that the acts of the corporate officers of an existing corporation, were considered as admissible evidence, from which the fact of the acceptance of a new charter might be inferred, and that it was not necessary to produce a written instrument, or recorded vote of acceptance. And if the acceptance of a new charter by an existing corporation, 

 [*427]  need not be in writing, but may be inferred from other facts and circumstances, it is difficult to imagine, why other acts of a corporation, or the acceptance of other instruments, may not be inferred in like manner. In The King vs The Inhabitants of Chipping Norton, we have seen, that the verbal agreement of a corporation was held to be a ground for an application to a court of equity. The agreement,  [**197]  therefore, was not considered void, for the want of being in writing. In Wood vs Tate, 5 Bos. & P. 246, which was an action of replevin, founded upon a distress for rent by the bailiff, of the bailiffs and burgesses of the borough of Morpeth, it was held by the court, that the payment of rent from time to time, by the plaintiff, to the officers of the corporation, was alone sufficient evidence of a tenancy from year to year under the corporation, to entitle the corporation to distrain for rent in arrear. In Doe, on the demise of the Earl of Carlisle, vs Woodman and Forster, 8 East 228, it was held, that the payment of rent by the bailiffs of the borough of Morpeth, was evidence of a tenancy in the corporation. We have before seen, that in The Bank of Columbia vs Patterson's Adm'rs. where it appearing in evidence that the corporation had from time to time paid money on the personal contracts under their private seals of its committee, which were for the benefit of the corporation, it was held by the supreme court of the United States, that the jury might legally infer from that evidence that the corporation have adopted the contracts. In The Proprietors of the Canal Bridge vs Gordon, 1 Pick. 297, [**198]  it was held, that corporations could be bound without a vote or deed by implications from corporate acts. Chief Justice Parker, in delivering the opinion of the court, said, "It is true that the acts, doings and declarations of individual members of the corporation, unsanctioned by the body, are not binding upon it; but it is equally true, that inferences may be drawn from corporate acts, tending to prove a contract or promise, as well as in the case of an individual; and that a vote is not always necessary to establish such contract or promise." The question was, whether The Proprietors of the Canal Bridge had assented to a proposition by another corporation? And proceeding to comment upon the evidence, the judge said, "here was a direct and plain proposition, 

 [*428]  and if it had been met by as plain an acceptance by vote recorded, no one would imagine that any question could arise as to the effect." And he added, "the question is narrowed to this; have The Proprietors of the Canal Bridge assented to this proposition and acted under it? We find no vote to this effect; but we do find, that the cross bridge was suffered to unite with theirs pursuant to the proposition,  [**199]  and that for four years, all were suffered to pass without toll, who came from Charlestown to Cambridge, or vice versa. Now corporations can be bound by implications, as well as individuals, as has been before stated, and no acts could be stronger to show an assent to a proposition, an agreement or bargain, than those which have been mentioned." Here was no vote or written memorandum, nor any foundation for presuming a vote, or other written assent of the corporation. On the contrary, the court went expressly on the ground that there was no vote, but that the assent of the corporation might be inferred from other corporate acts. And in Whittington vs The Farmers Bank of Somerset and Worcester, before adverted to, it was decided, that it was not necessary an order of the president and directors should be in writing to give it validity, but that it might be proved, if not reduced to writing, by oral testimony. Other decisions in Pennsylvania, New-York and Massachusetts, might with effect be brought into this discussion, but it is thought to be unnecessary. In Smith and others vs The Governor and Company of the Bank of Scotland, in the House of Lords, 1  [**200]  Dow's Rep. 272, the appellants were sureties in bond to the bank of Scotland, with Patterson the principal, who was an agent of the bank. The bond was at first sent to the bank, but returned to Patterson to get it properly executed, and was then sent back again to the bank; but while it was in transitu, and before it got back to the bank, or into the hands of its officers, Patterson was removed from his office. One of the questions raised in the House of Lords was, as to the due delivery of the bond. Lord Eldon said, "the court below had attended to the objection with respect to the delivery of the deed, they seemed to have considered it properly delivered, and he did not think, there was sufficient ground to quarrel with their decision on that head." Lord Redesdale said, "as Patterson seemed to 

 [*429]  have acted as the agent of the bank in the transaction, delivery to him might be considered as delivery to the bank." And the House of Lords decided, "that if not impeachable on other grounds, it was to be considered as a delivered deed." The case was argued by Sir Samuel Romilly and Mr. Brougham for the sureties, and is a very strong case.  [**201]  The opinion of Chief Justice Mashall, in The Bank of the United States vs Dandridge, in the Circuit Court of Virginia, (which was exactly similar to this,) "that the bond was inoperative, unless the assent thereto of the directors, had been entered on the record of their proceedings," was pressed upon us in the argument. And if any thing could have caused me to doubt, it would have been the opinion of that distinguished judge; the decision however, of the circuit court, has we are informed been reversed in the Supreme Court of the U. S. by the unanimous opinion of all the other judges. It will be admitted, that a corporation may be bound by the acts of its duly authorised agent, although such acts are not reduced to writing. The charter of this bank requires, that the cashier shall give bond with two or more securities, "to the satisfaction of the president and directors." If there had been no such provision, and the corporation had appointed an agent, or board of agents, or a committee, for that purpose, could it have been successfully contended, that the acceptance of the bond by such agent or committee, or board of agents, must have been in writing? If not, what [**202]  is there in this case, to distinguish it materially from that? Are not the directors constituted by the charter the duly authorised agents of the corporation?
By the seventh section of the charter, it is provided, that "the affairs of the said company shall be conducted by a president and sixteen directors, together with such other directors as the state shall appoint." By the eighth section, the directors are empowered to appoint a cashier and other officers for conducting the business of the corporation. By the ninth section, the president and directors are empowered to make by-laws, &c. for the government of the corporation, &c. By the 9th fundamental article of the constitution, the president and eight directors are constituted a board for the transaction of business; and by the 14th, the cashier is required to give bond 

 [*430]  with two or more sureties, to the satisfaction of the president and directors.
The directors then are agents of the corporation appointed by the charter, and why should their acts, within the scope of their authority, be required to be in writing, more than the acts of agents appointed by the corporation itself? The acceptance of the cashier's [**203]  bond, is within the scope of their authority, and the terms of the charter from which they derive that authority, do not require their acceptance, or their being satisfied with the sureties in the bond, to be in writing, nor do we perceive on what ground the affirmative of the proposition can at this day be maintained. But it is thought unnecessary farther to prosecute the examination of this branch of the case. The bond in question, which was not attested, having been found deposited among the archives and valuable original papers and documents of the bank, in an iron chest in the banking-house of the corporation, together with other papers, purporting to be the bonds of the tellers, book-keepers, and other inferior officers; and having been produced at the trial by the plaintiffs, and Higginbothom, whose original appointment as cashier, is recited in the bond, having been continued in the constant employment of the bank from that time until he was dismissed in 1819, without any reappointment, or on any other bond being given, we think the jury, in the absence of all other evidence respecting the execution of the bond, ought to have been permitted to infer, that it was duly executed [**204]  and delivered by the defendant, and accepted by the plaintiffs; which acceptance necessarily included the approbation of the board, or their satisfaction with the sureties, and was not necessary to be in writing.
The question presented by the plaintiffs' sixth bill of exceptions, is upon the admissibility of the corporation books, on proof that they were kept by Pierce L. Tanner and Jacob Hart, as officers of the corporation; that the several entries contained in the books, were in the proper handwriting of Tanner and Hart; that they were kept under the superintendence and direction of Higginbothom; that Hart was dead, and that Tanner was residing out of the jurisdiction of the court in parts nnknown; which were rejected by the court as inadmissible. 

 [*431]  And perhaps it could not well have been otherwise, after the bond on which the suit was brought had been rejected.
It appears from the pleadings in the cause, which are very prolix and complicated, that the fact of there being in the books, false and deceptious entries, made by the clerks with the knowledge and connivance of Higginbothom, were distinctly put in issue on several of the breaches [**205]  assigned in the replication. The books were not offered for the purpose of proving the truth of the facts which the entries professed to assert, as in the case of an offer to prove, by the entries in a book, the delivery of the articles charged. But to show as facts what entries were in the books, which could only be done by the production of the books themselves. For which purpose, under the pleadings in the cause, and being of opinion that the bond was improperly rejected, we think the books ought to have been received in evidence, on proof that they were kept by Tanner and Hart as officers of the bank, and that the entries were in their handwriting; which we think might well be done in such a case, in order to lay a foundation for letting in other testimony to show fraud, malconduct, neglect, or violation of duty on the part of Higginbothom, and of Tanner, in relation to the entries, and the manner of keeping the books. Moreover, it is stated in the exception, that the plaintiffs offered to prove that the books were kept under the superintendence and direction of Higginbothom; and if that were the fact, their admissibility was no more subject to objection, than [**206]  if they had been kept by himself.
Upon the whole, then, we concur in opinion with the Baltimore county court on the plaintiffs' first bill of exceptions, and differ from that court upon all the other exceptions taken by the plaintiffs.
The questions raised on the demurrers by the defendant, in relation to the duration of the cashier's bond, present, we think, but little difficulty, and will be briefly disposed of. The original act of incorporation was limited in its duration to the expiration of the year 1815, and to the end of the next session of assembly thereafter, which was the 6th day of February 1817; and by the act of 1815, ch. 167, it was extended to the 1st of 

 [*432]  January 1835, and to the end of the session of the general assembly next thereafter. By the charter the directors are to be chosen annually, and for that reason, connected with the eighth section authorising the directors for the time being to appoint a cashier and other officers, it has been contended first, that the appointment of cashier is an annual appointment, and that the obligation of the bond in question did not extend beyond the end of the year next ensuing the appointment [**207]  of Higginbothom as cashier. If the premises were true, the conclusion would be unavoidable. But the premises, we think, are not true; and that the appointment of cashier is not an annual appointment, but limited only by the duration of the charter, subject to the removal of the incumbent by the directors, as occasion may require. If the cashier was a mere clerk or agent of the directors, who are themselves annually appointed, it might be otherwise; but he is not the mere servant or clerk of the directors who appoint him, but an officer of the corporation, appointed by its agents duly authorised for that purpose, whose limited term of service has no connexion with the duration of his appointment. The provision in the charter, "that the directors for the time being shall have power to appoint a cashier," does not mean that the office of cashier must annually become vacant, and that every new set of directors are to appoint a new cashier. The eighth section of the charter provides for the annual election of directors; and if it had been intended that a cashier should be also annually appointed, the reasonable presumption is, that it would have been so directed. And in the absence [**208]  of any such provision, the words "the directors for the time being shall have power to appoint a cashier," &c. must be understood as meaning only, that whenever, for any reason, the appointment of a cashier should be necessary, the then board of directors should be authorised to make the appointment. In giving this construction to the eighth section, some aid is derived from the use of the same language in the ninth section, which provides "that the president and directors for the time being, may make all such rules, orders, by-laws and regulations, for the government of the corporation," &c. Now it cannot be intended that every new board shall make a new set of by-laws, &c. but only when by-laws, &c. are to be made, 

 [*433]  to authorise the making them by the then board of president and directors.
But it is contended, secondly, that the bond in this case is only co-extensive with the limitation of the original act of incorporation; that is, that it does not reach beyond the expiration of the year 1815, and the end of the next session of assembly thereafter, which was the 6th of February 1817, and that the defendant is only responsible for violations by Higginbothom [**209]  of the condition of the bond, between the date and the 6th of February 1817. In construing this bond, we must look to the intention of the parties at the time it was executed. It is a question of intention which, when ascertained, must govern the construction. When the bond was executed then the act of incorporation, under which it was given, was limited in its duration to the 6th of February 1817. The bond looked to the time for which Higginbothom was appointed, and that was restricted by the limitation of the charter as it then stood. What then was the intention of the parties? And where is that intention to be found? Where but in the original act of incorporation, under which the bond was executed? And looking to that act, it would seem to be very clear, that no responsibility was contemplated beyond the period of its duration--"there was no idea then, of carrying it any further." The parties knew the legal duration of the charter expressed upon the face of it; they contracted with a view to that duration, and the contract must be expounded as the law was when the contract was made. The president and directors, under the authority given them by the act of incorporation,  [**210]  to appoint officers of the corporation, could not appoint them for a term of service exceeding the legal existence of the corporation. With that corporation, limited in its duration to the 6th of February 1817, the defendant contracted for the fidelity of one of its officers while in its service, which service could not, as the law then was, point to a period beyond the existence of the corporation itself. It is true a power rested in the legislature to extend the duration of the charter, which has since been done. But it was not with the corporation in its enlarged shape, that the defendant contracted. And what the contract was, at the time it was entered into, so it remains; and the act of 1815, 

 [*434]  extending the duration of the charter, could not enlarge the liability of the defendant without his consent. If he had been asked at the time of executing the bond, whether he would be willing to become a surety for Higginbothom, for any length of time to which the charter might be extended by the legislature, of which it was a creature, it may be, that he would have assented to it; but it is by no means evident that he would; and we are not to speculate on what he might have [**211]  been willing to do. We can look only to what he did. The bond is general to The President and Directors of the Union Bank of Maryland, and recites, that they had employed Higginbothom in the capacity of the cashier, and such other business as they might think fit to employ him about; without a word in relation to any extension of the charter, or any services to be performed beyond the time to which the then charter was limited. We cannot then presume, that any extension of the charter was in the contemplation of the parties, but that the contract was made with a view to a law, which by its own limitation was to expire on the 6th of February 1817; and we must expound the contract, by the law as it then was, and not by the continuing act of 1815, which did not enter into the contract, and could not enlarge it. We think, therefore, that the defendant is not responsible on that bond or contract, for any thing done, or omitted to be done, by Higginbothom, after the 6th of February 1817, acting in the character of cashier; and that the several demurrers on the part of the defendant were properly sustained by the court below.
The authorities relied upon by the counsel for the [**212]  plaintiffs to show, that the day laid is often immaterial, and that the demurrers could not be supported, whatever might be the legal duration of the bond, are not applicable to such a case as this: It is very certain, that the day laid is frequently not material; as in trespass, where the injury charged may be provided to have been committed on a day before or after the time stated in the declaration; provided it appears to have been before the action was brought, the substantial part of the issue being, whether the trespass was committed, and not on what day it was committed. And if in such a case, the day was material, as the objection 

 [*435]  would not appear upon the record, but depend upon the evidence, it could not be taken advantage of by demurrer.
But here, so far as the breaches demurred to allege matter as violations of the condition of the bond, after the sixth of February in the year 1817, the time laid is material; it is the very matter in controversy between the parties, depending upon the true construction of the contract, and raises the question of the legal responsibility of the defendant for any acts or omissions of Higginbothom as cashier, after [**213]  the period of the original limitation of the charter, and the objection does not depend upon the evidence, but appears upon the record.
The objection is not to the form in which the breaches are assigned, nor to the introduction of merely immaterial matter, that might be treated as surplussage; but to the allegation of material matter beyond the responsibility of the defendant, on which he could not with safety have gone to issue.
JUDGMENT REVERSED, AND PROCEDENDO AWARDED.