1 of 44 DOCUMENTS 

THE MAYOR & CITY COUNCIL OF BALTIMORE vs. HUGHES'S Adm'r D. B. N.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

1 G. & J. 480; 1829 Md. LEXIS 40 

December, 1829, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Harford County Court. This was an action of Assumpsit, originally brought in Baltimore County Court, but on suggestion, &c. of the defendant (the intestate of the appellee) was removed to Harford County Court. After the cause was so removed, the death of the original defendant was suggested, and the present appellee was made defendant, as his administrator de bonis non. The action was brought to recover the sum of $ 1880 35, alleged to be due to the plaintiffs (the appellants) for certain paving taxes assessed upon the property of the intestate, by virtue of the corporate powers vested in the plaintiffs by certain acts of Assembly. The declaration contained six counts--four special counts, and two general counts. The first count was for a paving tax, on application, &c. imposed the 24th of April, 1809, on Forrest street, &c. amounting to $ 656. The second count was for a paving tax to remove a nuisance, imposed the 20th of July, 1812, on Barre street, between Light and Charles streets, amounting to $ 728.28. The third count was for a similar tax, imposed the 29th of July, 1812, on Forrest street, between Lee and York streets, amounting to $ 496 07. The fourth count was [**2]  for paving taxes generally, amounting to $ 1880 35, being the aggregate of the sums mentioned in the three first counts of the declaration. The fifth count was for money paid, laid out and expended; and the sixth count was for work and labor. The defendant pleaded non assumpsit, and issue was joined.

1. At the trial the plaintiffs gave in evidence an act of the General Assembly of this State, passed at November session, 1796, entitled, "an act to erect Baltimore town, in Baltimore County, into a city, and to incorporate the inhabitants thereof." (1796, ch. 68.) And also another act of the said General Assembly, passed at November session, 1797, entitled, "A supplement to the act, entitled, An act to erect Baltimore town, in Baltimore county, into a city, and to incorporate the inhabitants thereof." (1797, ch. 54.) They further gave in evidence an ordinance of the Mayor and City Council of Baltimore, entitled, "An ordinance to appoint city commissioners, and prescribing their duties," approved March the 9th, 1807. And also gave in evidence another ordinance, entitled, "An ordinance to unite the powers and duties of the city commissioners and commissioners of health," approved 22d [**3]  day of March, 1807. They also gave in evidence, that during the year 1809, Henry Stouffer, John Bankson, William C. Gouldsmith, and Samuel A. Gatchell, were city commissioners, duly appointed and qualified, and that the said John Bankson, William C. Gouldsmith, and Samuel H. Gatchell, have been dead several years; and also gave in evidence, that Edward Johnson was in said year, the Mayor of the city of Baltimore, duly elected and qualified. That on the 13th of June, 1808, the following petition was presented to, and received by the said Henry Stouffer, &c. commissioners as aforesaid.

"The City Commissioners, Gentlemen--The subscribers, owners and occupiers of houses and lots situate on Forrest street, between the southernmost boundary line of the city and York street, are desirous to have the same paved as soon as possible." Signed by a number of petitioners, and among others the original defendant Hughes.

On the back of which said petition was thus endorsed: "No 1. Petition for paving Forrest street. Rec'd. 13th June, 1808. Ordered to be surveyed." They further gave in evidence the following entries made in the book containing the proceedings of the said commissioners, viz.  [**4]  Baltimore, 8 May, 1809. Commissioners met. Present, full board. Issued warrant for the paving of Forrest street, $ 1584 87, $ 1503 57, $ 3088 44." They further gave parol evidence, that upon said application the said commissioners decided to pave said street, and obtained the verbal assent of the mayor of said city to such pavement; they also offered parol evidence, that the signers of said application or petition, constituted a majority of the proprietors and tenants inhabiting on said street, between the limits so required to be paved; and that Christopher Hughes, one of the proprietors, was the same Christopher Hughes who signed said application or petition; and also gave in evidence the following warrants: "City of Baltimore, sct. The city commissioners having been requested by a majority of the proprietors of lots bounding on Forrest, between York street and the outlines of the city, and tenants inhabiting thereon, by their written application of the fifteenth day of June last, and having determined on the propriety of paving said street front of said lots, agreeably to their request, did cause to be made the following list of the names of the persons who are liable to pay the [**5]  tax by law directed to be levied for paving the said street, it being the width of eighty two feet six inches." Here follows the names of sundry persons, and amongst others, Christopher Hughes, $ 656.

"City of Baltimore, to wit: By virtue of an ordinance, entitled, An ordinance directing the manner of collecting and appropriating the money levied for paving the streets, lanes and alleys, in the city of Baltimore, and also an ordinance, entitled, An ordinance for more equal assessing and levying the paving tax on the streets, lanes and alleys, in the city of Baltimore, we the subscribers, city commissioners, do hereby authorize and direct you to collect from the several persons whose names are hereto above annexed, the several sums of money opposite their respective names, being the street tax on Forrest street, between York street and the outlines of the city. That you will make collection aforesaid, and pay the same to the register of the city, agreeably to the directions of the ordinance aforesaid, and this shall be your sufficient warrant therefor. Given under our hands and seals this 24th day of April one thousand eight hundred and nine." Signed and sealed by Henry Stouffer,  [**6]  &c. the city commissioners. "8th May, 1809. Approved Edward Johnson. To the Collector of the City of Baltimore, Benjn. Fowler, Esquire." On the back of which said warrant was thus endorsed: "Warrant for paving Forrest street, dated 8th May, 1809. Entered." They also gave in evidence that the said street then was, and still is, a public street in said city, and that the city commissioners caused that part of the said street called Forrest street, between York street, and the outlines of the city, to be paved, and that the proportion of the paving tax of the said Christopher Hughes for paving said part, amounted to $ 656, and that he paid on account thereof, when the paving was done, the sum of $ 500. They then offered in evidence that Henry Stouffer, &c. were city commissioners, and commissioners of health, in the city aforesaid, in the year 1812, duly appointed and qualified as such; that Edward Johnson was then and during the said year, the mayor of said city, duly elected and qualified as such. The plaintiffs then gave in evidence the following entries made upon the books of the commissioners aforesaid, viz. "Baltimore, 29th June, 1812. Commissioners met. Present, full board. Barre,  [**7]  between Light and Charles streets, and Forrest, between Lee and York streets, declared by the board of health to be in a state of nuisance, which cannot be removed without paving the same. Resolved, that the same be forthwith paved." And that the books in which said entries are found and taken from, are the books, and only books, of the commissioners of health and city commissioners, in which all their proceedings are entered. The plaintiffs further gave in evidence the following warrants: "City of Baltimore, sct. We the city commissioners, as also commissioners of health, conceiving Barre street, between Charles and Light streets, to be in a state of nuisance, which might endanger the health of the city, and which nuisance in our opinion cannot be removed but by paving, do adjudge and determine that the same be paved front of the lots bounding thereon, have caused to be made the following list of the names of the persons who are liable to pay the tax by law directed to be levied for paving said street front of said lots." In that list is the name of Christopher Hughes, $ 728.28.

"City of Baltimore, sct. By virtue of an ordinance, entitled, An ordinance directing the manner of [**8]  collecting and appropriating the money levied for paving the streets, lanes and alleys, in the city of Baltimore, as also an ordinance, entitled, An ordinance for the more equal assessing and levying the paving tax on the streets, lanes and alleys, in the city of Baltimore, and agreeably to an ordinance respecting nuisances, we, the city commissioners, do hereby authorize and direct you to collect from the several persons whose names are hereto above annexed, the several sums of money opposite their respective names, being the paving tax on Barre street, between Charles and Light streets. That you will make the collection aforesaid, and pay the same to the register of the city, agreeably to the ordinances aforesaid, and this shall be your sufficient warrant therefor. Given under our hands and seals this twentieth day of July, 1812." Signed and sealed by Henry Stouffer, &c. the city commissioners, "23d July, 1812. Approved Edward Johnson, Mayor." To the collector City of Baltimore. On the back of which said warrant was thus endorsed--"Warrant for paving Barre street between Charles and Light streets. Dated 23d July, 1812. Ent."

"City of Baltimore, sct. We the city commissioners,  [**9]  as also commissioners of health, conceiving Forrest street, between Lee and York streets, to be in a state of nuisance, which might endanger the health of the city, and which nuisance, in our opinion, cannot be removed but by paving, do adjudge and determine, that the same be paved front of the lots bounding thereon, and have caused to be made the following list of the names of the persons who are liable to pay the tax by law directed to be levied for paving said street." In that list Christopher Hughes' tax was $ 496 07. A similar warrant to that last mentioned was issued on the 29th of July, 1812, by the commissioners for collecting the tax, and which was approved by the mayor on the same day. On the back of which said warrant was thus endorsed--"Warrant for paving Forrest street, between Lee and York streets. Dated 29th July, 1812. Ent'd." The plaintiffs also gave in evidence, that Barre street, between Charles and Light streets, and Forrest street between Lee and York streets, then were, and still are, public streets in the said city of Baltimore, and that said Christopher Hughes was in possession, and claimed title to the property on Barre and Forrest streets, for about thirty [**10]  years, at the time the said streets were paved, and that the city commissioners aforesaid, caused that part of Barre street, between Charles and Light streets, to be paved, and that the said proportion of the said paving tax therefor of the said Christopher Hughes, amounted to $ 728 28, as assessed to him by the city commissioners; and that the said commissioners caused that part of Forrest street, between Lee and York streets, to be paved, and that the proportion of the said paving tax, as charged by the city commissioners to the said Christopher Hughes, amounted to $ 496 07. The plaintiffs further offered in evidence, by Elisha T. Bailey, that he contracted with the said commissioners to pave the said parts of the said two streets last mentioned; that he did pave the same, and received payment therefor from the plaintiffs, and that the said Christopher Hughes was frequently present on the said parts of streets, when the witness was so paving the same, and requested a part thereof to be done in a particular manner, by objecting to certain stones used as improper, and requesting him to put in others, which the witness accordingly did: that the first part of said work was commenced [**11]  in July, 1812, and finished either the last of July or first of August. Whereupon he immediately commenced the paving the other street, and finished the same in the fall of the year; that the said Christopher Hughes, when the said paving was finished, offered to pay the said Bailey for paving on said streets, so performed by him, provided he would take unimproved lots in payment therefor, which the said Bailey refused to do. The plaintiffs further gave in evidence that the said Henry Stouffer, &c. mentioned as the city commissioners, are the same persons who composed the board of health of the said city, and were commissioners of health at the periods and in the year before mentioned; and they further gave evidence, that the several warrants herein before mentioned, were duly approved by the mayor of the city of Baltimore, before the same were issued and delivered to the collector of said city.

The defendant then, prayed the court to instruct the jury, that the plaintiffs were not entitled to recover for the paving of Barre street, between Light and Charles streets, and Forrest between Lee and York streets--1st. Because there is no evidence that the commissioners of health, or [**12]  board of health, did at any time ascertain that a nuisance existed in the said streets, which would endanger the health of the city of Baltimore; and also because there is no evidence that the said commissioners of health, or board of health, did at any time report in writing to the city commissioners, that a nuisance existed in the said streets, which will or would endanger the health of the city of Baltimore. 2d. And because the plaintiffs, by virtue of the thirteenth section of their ordinance of the 9th of March, 1807, entitled, "An ordinance to appoint city commissioners, and prescribing their duties," could not confer a power on the said city commissioners to assess or levy a tax on any particular part or district of the city of Baltimore, or the proprietors or owners of such part or district, for the purpose of preventing or removing a nuisance, which will endanger the health of the city of Baltimore. 3d. Because it is in evidence, and uncontradicted, by the books and proceedings of the commissioners of health, or board of health, and of the city commissioners, that Barre street between Light and Charles streets, and Forrest street between Lee and York streets, were declared [**13]  by the board of health to be in a state of nuisance, and that the commissioners of health had not declared the said streets to be in a state of nuisance, which will or would endanger the health of the city. Which instruction the court [Archer, Ch. J.] gave to the jury. The plaintiffs excepted.

2. The plaintiffs, in addition to the evidence set forth in the preceding bill of exceptions, offered in evidence by Henry Stouffer, a witness sworn on the trial on the part of the plaintiffs, that he was the only survivor of the board of city commissioners, and commissioners of health, for the year 1812; and the plaintiffs further offered in evidence, by the said witness, that in the month of July, 1812, Barre street between Light and Charles streets, and Forrest street, between Lee and York streets, were entirely on made ground, and that a nuisance existed in the said part of the said streets, which endangered the health of the city of Baltimore, and that the same could not be effectually removed without paving the same. To the admissibility of which evidence, the defendant objected; and the court were of opinion, that the said testimony was inadmissible, and refused to let the same [**14]  go to the jury. The plaintiffs excepted.

3. The plaintiffs further prayed the court to instruct the jury, that upon the evidence contained in the preceding bills of exceptions, the plaintiffs are entitled to recover in this action the proportion of the paving taxes chargeable to the said Christopher Hughes in his life-time, for the paving of Barre street, between Light and Charles streets, to wit, the sum of $ 728 28, and for the paving of Forrest street, between Lee and York streets, to wit, the sum of $ 496 07, under the fifth and sixth counts, in their declaration for money paid, laid out and expended, and for work and labor done, and materials found and provided; which instructions the court refused to give. The plaintiffs excepted; and the verdict for the plaintiffs being only for the sum of $ 318, and judgment thereon rendered, they appealed to this court.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

Under the 2d. sec. of the act of 1797, ch. 54, the power given to the Mayor and City Council of Baltimore, "to tax any particular part or district of the city, for paving the streets, lanes or alleys therein, or for sinking wells or erecting pumps, which may appear for the benefit of such particular part or district," is not confined to any particular description of benefit--such as the ordinary benefit and advantage of paved streets. The preservation of the health of such particular part of the city, is a benefit within the meaning and scope of the act.

The legality of laying such tax, does not depend upon whether the paving does, or does not in fact, benefit the particular district taxed, but upon the object, the motive of the corporation in causing the paving to be done.

In an ordinance providing for such paving, and the imposition of such a special tax, it is not necessary that it should be expressly stated to be for the benefit of the particular district; if nothing appears to the contrary, such an exercise of the special taxing power will be taken to have been in pursuance of the authority given by the charter.

But where an ordinance provides for the paving of a street, &c. in a particular district, and the imposition of a special tax for that purpose on such district, which paving appears from the ordinance to be for the general benefit of the city, and not for the benefit of the particular district, it is not in pursuance of the authority conferred by the charter, and is void.

So upon the construction of the 13th sec. of the ordinance of the 9th March, 1807, which declares "that if the Commissioners of Health shall, at any time report in writing to the City Commissioners, that a nuisance exists in any street, lane, or alley in the city of Baltimore, which will endanger the health thereof," &c. it was held that the word thereof does not relate to the city of Baltimore, so as to make it mean a nuisance which will endanger the city, but that it relates to any street, lane or alley, &c. and means a nuisance that will endanger the health of such street, &c. and the ordinance is clearly within the power conferred by the charter.

A corporation must act within the limits of its delegated authority, and cannot go beyond it, yet it ought not by construction to be made to mean what is not clearly expressed, but when its ordinances will admit of two constructions, they should receive that which is consistent with the power given, and not that which is in violation of it.

Where one board of commissioners, in the execution of their duties, were required to report in writing to another board of commissioners, who thereupon were to do certain acts; and these boards were subsequently united without any change being prescribed as to the mode of discharging the trusts formerly confided to each of them, the formality of a written report as above directed, was necessarily dispensed with.

Under the 13th section of the ordinance of the 9th March, 1807, the City Commissioners and Commissioners of Health, were required to form a positive and decided opinion that "a nuisance exists" in some "street, lane, or alley in the city of Baltimore, which will endanger the health thereof"--An entry in their books of their decision is not required. Certificates in their warrants, which they are directed to issue for the collection of the tax imposed to remove the nuisance, of the existence of the nuisances and of their characters would be sufficient; but where they say in each warrant that they conceive the street mentioned, to be in a state of nuisance, which might endanger the health of the city, thus referring to the health of the city generally, not to that of a particular part, it is not such an opinion as the ordinance requires, and the tax imposed under it cannot be enforced.

It is not competent to prove by oral testimony, the existence of facts to be ascertained by public commissioners, preparatory to laying a tax, which such commissioners are required to certify in writing.

The action for money paid, laid out, and expended, must be founded upon a contract, express or implied.

No person can by a voluntary payment of the debt of another, without his authority, make himself a creditor of the person whose debt is thus paid.

If one is compelled, or is in a situation to be compelled to pay the debt of another, as in the case of a surety and does pay it, the law implies a promise on the part of him for whom the money is paid, on which an action may be sustained, for in such case it is not a voluntary, but a compulsory payment.

A tax imposed by a municipal corporation cannot be recovered on a count for money paid, laid out, and expended, although such corporation has paid the cost of the improvement for which the tax was created.

Nor can the cost of such improvement, or any part thereof, be recovered from a defendant, liable to pay tax therefor on a count for work and labor, where the ordinance under which the work was done, has not been properly pursued, so as to create a legal liability in the defendant.  

COUNSEL:
Taney (Attorney General) and J. Scott for the appellants, contended that the court below erred in giving the instructions prayed for by the defendant, as set forth in the first bill of exceptions--1. Because the nature and character of the nuisances alleged to exist in Barre street, between Light [**15]  and Charles streets, and in Forrest street, between Lee and York streets, were sufficiently ascertained by the proceedings of the board of health and city commissioners, according to the ordinance of the 9th of March, 1807, (Young's Ed. 60, sec. 13.)--the board of health and city commissioners being composed of the same persons. Ib. 165.

2. Because the powers and duties of the board of health and city commissioners, being united by the ordinance (Ib. 165,) that part of the 13th section, which requires a report in writing from the board of health to the city commissioners, of the existence and nature of the alleged nuisance must be considered as repealed--such a report being absurd and unnecessary.

3. Because the existence and character of the nuisance, being ascertained by the tribunal competent to decide the question, and the plaintiffs having the power to tax as well as pave, by the act of 1797, ch. 54, in the absence of proof to the contrary, it must be understood to be a lawful exercise of those powers.

4. Because the nature of the nuisance shows that it was for the benefit of those districts that it should be removed; and the competent authorities had decided, that [**16]  it could only be done by paving.

5. Because the powers to prevent and remove nuisances, to pave, and to tax for the said paving, have been properly exercised by the plaintiffs by their officers and servants.

6. Because the nature and character of the alleged nuisances are sufficiently ascertained by the commissioners of health and city commissioners, in the warrants issued by them, and no other ascertainment thereof was necessary.

7. The appellants also contended, that the court below erred in refusing to grant the prayer of the plaintiffs, contained in the third bill of exceptions; because they offered evidence, proper to go to the jury under the fifth and sixth counts in the declaration, to show the assent of the defendants' intestate to the paving of Barre street, between Charles and Light streets, and of Forrest street, between Lee and York streets, and the payment for the same by the plaintiffs; and that upon such assent the plaintiffs were entitled to recover from the defendant for such paving, and for the money so paid, laid out and expended.

They referred to the acts of Assembly and ordinances stated in the bills of exceptions. Also to The Mayor &c. vs.  [**17]  Moore & Johnson, 6 Harr. & Johns. 380, and the Mayor &c. vs. Howard, Ib. 91.

R. Johnson for the appellee. 1. The character of the nuisance was not sufficient to justify the paving, under the ordinance of the 9th of March, 1807, sec. 13.--2. The paving was not such as authorised the imposition of the tax laid under the act of 1797, ch. 54. 3. The plaintiffs were not entitled to recover under the general counts in the declaration, for work and labor done, &c.  

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

OPINIONBY:
BUCHANAN 

OPINION:

 [*491]  BUCHANAN, Ch. J. delivered the opinion of the court.
A recovery by the plaintiffs of the taxes imposed under the 13th section of the ordinance of the 9th of March, 1807, is resisted by the defendant on two grounds.
1st. That the power given by the ordinance has not been well executed.
2d. That the ordinance itself is not authorized by the charter.
The second ground relied upon involves the construction both of the charter and the ordinance, and will be first examined.
The second section of the act of 1797, ch. 54, a supplement to the act incorporating the city of Baltimore, gives to the [**18]  corporation power to pass all ordinances, necessary for paving and keeping the streets, &c. in repair, "and to tax any particular part or district of the city for paving the streets, lanes or alleys therein, or for sinking wells, or erecting pumps, which may appear for the benefit of such particular part or district." In the case of The Mayor and City Council of Baltimore, vs. Moore and Johnson, 6 H. & J. 375, it was decided by this court, that the word which in that provision of the act, related as well to the paving the streets, lanes and alleys, as to the sinking of wells and erecting pumps, and that the corporation had authority to tax any particular part or district of the city, for paving the streets, lanes or alleys therein, which might appear for the benefit of such particular part or district. The reasoning by which that conclusion was arrived at, need not be repeated 

 [*492]  in this place. A different construction however would certainly be at war with the intention of the legislature, as it never could have been contemplated, to give to the corporation the power to tax any particular part or district of the city, for any paving which was [**19]  for the general benefit, and not for the benefit of the immediate part or district taxed; which under a different construction, would be the effect of the second section of the act of 1797, taken altogether. Under this restricted construction, limiting the power of the corporation to tax any particular part or district of the city, for paving the streets, lanes and alleys therein, to a paving which shall be, or appear to be for the benefit of such particular district, and not for the general benefit of the city, which ought to be paid for out of the general fund, and not by the imposition of a special tax upon any particular part of the city, we think the corporation is not confined to any particular description of benefit, such as the ordinary benefit and advantage of paved streets; and that the preservation of the health of such particular part of the city, is a benefit within the meaning and scope of the act.
The legality of levying the tax, does not depend upon whether the paving does or does not in fact benefit the particular district that is taxed, but upon the object, the motive of the corporation in causing the paving to be done. And in an ordinance providing for such [**20]  paving, and the imposition of such a special tax, it is not necessary that it should be expressly stated to be for the benefit of the particular district: but if nothing appears to the contrary, such an exercise of the special taxing power, will be taken to have been in pursuance of the authority given by the charter. It will be presumed that the corporation did not exceed its powers, but imposed the tax for the purpose only, for which the charter authorizes it to be imposed, and that the paving appeared to the city council, to be for the benefit of the particular district.
But where an ordinance provides for the paving a street, &c. in a particular district, and the imposition of a special tax for that purpose on such district, which paving appears by the ordinance 

 [*493]  to be for the general benefit of the city, and not for the benefit of the particular district, such an ordinance is not in pursuance of the authority conferred by the charter, and is void. And such it is contended is the character of the 13th section of the ordinance of the 9th March, 1807, providing for the imposition of the taxes the recovery of which in this suit is resisted.
The provision of that section [**21]  is in these words, "that if the commissioners of health, shall at any time report in writing to the city commissioners, that a nuisance exists in any street, lane or alley in the city of Baltimore, which will endanger the health thereof, and the city commissioners upon a full examination thereof, should be of the same opinion, and that the same cannot be effectually removed, without paving such street, lane or alley, they are hereby authorized and required, to proceed to the paving of such street, lane or alley, and to issue their warrant under their hands to the city collector, directing him to collect the tax which may be imposed for the paving the same, &c.
It is supposed that, it appears upon the face of this ordinance, that the nuisance here authorized to be removed by paving the street, &c. in which it may be found to exist, is such a nuisance only, as in the opinion of the commissioners of health and the city commissioners, will endanger the health of the city generally, and not of the particular district in which the paving is authorized to be done, and the tax to be imposed; and that the paving and taxing is intended for the general benefit of the city and not [**22]  of the particular district. If such be the true construction of the ordinance, it cannot be questioned, that it was unauthorized by the charter, and that provision of it nugatory and void.
But to arrive at that conclusion, it must either be assumed, that a nuisance cannot exist in any particular part or district of the city of Baltimore, affecting or endangering the health of such particular part or district, without also so affecting or endangering the health of the whole city, or of the city generally, as to be a matter of such general concern, as that the means resorted to for removing it, can only be paid for out of the general fund, and not by a tax upon the particular district in which it may exist; and consequently that the paving contemplated 

 [*494]  and provided for by this ordinance, could only have appeared to be, and been intended for the general benefit of the city, and could not have been considered to be and intended for the benefit of the particular district to be paved, or that the language of the ordinance is such, as to show the object of the paving provided for, to be the general benefit of the city, and not the benefit of the immediate district.
With [**23]  respect to the first of these positions, it by no means appears to us, that a nuisance cannot exist in a particular part or district of the city of Baltimore, affecting or endangering the health of such part or district, without also affecting or endangering the health of the city generally, and that no paving can be authorized for the removal of a nuisance endangering the health of a particular district, without having for its object the general benefit of the city, and not the benefit of the district in which the nuisance may exist. And if such a nuisance may exist, of which the corporation is competent to judge, it has authority, under the charter, to pass an ordinance for the removal of such a nuisance by paving, and to impose a local tax for that purpose, if it shall appear to be for the benefit of the particular district, in which the paving is authorized to be done. And if there be nothing expressed in this ordinance to the contrary, the presumption is, that the nuisance contemplated, is one endangering the health of the immediate district in which it exists, and that the sole object of the paving provided for, is the benefit of that particular district. Is there then any [**24]  thing in the language of the ordinance to sustain the second position? Is there any expression pointing to the preservation of the general health of the city, or to the general, and not a local benefit, as the motive for authorizing the paving provided for?
This case has been argued, as if the language of the ordinance was, "which will endanger the health of the city." But whatever might be the effect of such words if used, that is not the language of the ordinance; the commissioners in their warrants say that they conceive the streets directed to be paved, "to be in a state of nuisance, which might endanger the health of the city." And it is probable that, the language of the warrants 

 [*495]  and of the ordinance, may have been confounded by the counsel. The words of the ordinance are, "that if the commissioners of health shall at any time report in writing to the city commissioners that a nuisance exists in any street, lane or alley in the city of Baltimore, which will endanger the health thereof," &c. Not in terms the health of the city, but thereof; and the question is, whether the word thereof must he held to relate to the city of Baltimore, or may refer [**25]  to the street, lane or alley in which a nuisance may be found to exist.
The power given by the charter under which this ordinance was passed, is, "to tax any particular part or district of the city, for paving the streets, lanes or alleys therein, or for sinking wells or erecting pumps which may appear for the benefit of such particular part or district." Now it has never been pretended, that the word therein in that clause related to the city, and meant for paving the streets, lanes or alleys, in the city. But it has always been considered, (and properly,) that it related to the particular part or district of the city to be taxed, and meant for paving the streets, lanes or alleys in such particular part or district. And the only question raised on that clause of the charter, in the Mayor, &c. vs. Moore & Johnson was, whether the latter part of it, "which may appear for the benefit of such particular part or district," related to the sinking of wells and erecting pumps, or extended also to the paving the streets, &c. So here we think that the word thereof in the ordinance, does not relate to the city of Baltimore, so as to make it mean a nuisance [**26]  which will endanger the health of the city of Baltimore: But that it relates to any street, lane or alley, &c., and means a nuisance that will endanger the health of such street, &c. The words in the city of Baltimore being only used as descriptive of where the street, &c. lies. And that there is nothing appearing upon the face of the ordinance, to show that the general benefit of the city, is the object of the paving provided for, and not the benefit of the particular district to be taxed.
This construction, brings the ordinance clearly within the power conferred by the charter, and although it is true, that a corporation must act within the limits of its delegated authority, 

 [*496]  and cannot go beyond it, yet it ought not by construction, to be made to mean what is not clearly expressed, but when an ordinance will admit of two constructions, it should receive, that which is consistent with the power given, and not that which is in violation of it.
The other ground relied upon by the defendant, is, that conceding the ordinance to be justified by the charter; yet the power given by it, has not been well executed, and two objections are raised; first, that by [**27]  the ordinance, a report in writing is required of the existence of a nuisance, &c. by the commissioners of health, to the commissioners of the city, which does not appear to have been made. Second, that the ordinance requires the nuisance to be of such a character, as will, in the opinion of the commissioners, endanger the health, &c. and that the commissioners have not so stated.
There is nothing in the first of these objections. The ordinance of the 22d of March, 1807, uniting the powers and duties of the city commissioners and commissioners of health, provides for the appointment of four persons to be city commissioners and commissioners of health, with all the powers and duties united in them, of the commissioners of health and city commissioners, and surely the formality of a written report by them to themselves was necessarily dispensed with. Besides there would be an inconsistency between the two ordinances, the one uniting the two bodies into one, and the other requiring the one to make a report to the other, when no such separate bodies existed, and the ordinance of the 22d of March, 1807, expressly repeals all such parts of the ordinance of the 9th of March, 1807, as [**28]  are inconsistent with any thing contained in it. An entry in the books of the commissioners of their decision is not required, and the certificates in their warrants of the existence of the nuisances and of their characters, would have been sufficient, if in other respects the ordinance was complied with. But the ordinance has not been complied with; the warrants of the commissioners should, to gratify the ordinance, have contained statements of the existence of nuisances in the respective streets specified, which would in their opinions endanger the 

 [*497]  health thereof, and not that they might do so. A positive and decided opinion is required, and not the expression of a doubt, as to the dangerous character of the nuisance to be removed. And it is evident from the terms used by the commissioners, that they had formed no decided opinion on the subject. They say in each warrant, that they conceive the street mentioned, to be in a state of nuisance which might endanger the health of the city, apart from the danger they speak of to the health of the city, instead of the health of the particular street, which is of itself a departure from the provision of the ordinance; [**29]  the opinion they express, is not such as the ordinance requires. The nuisance authorized to be removed, is required to be such, as in the opinion of the commissioners will be dangerous, and not such as may by possibility be dangerous; and the second objection is we think well taken.
The second exception was properly abandoned at the argument. The ordinance requiring the evidence of the existence of a nuisance, and of its dangerous character and tendency, to be in writing, the plaintiff was not competent to prove it by oral testimony at the bar.
The action for money paid, laid out and expended, must be founded upon a contract express or implied, and it is a settled rule, that no person can by a voluntary payment of the debt of another, without his authority, make himself a creditor of the person whose debt is thus paid; but if one is compelled, or is in a situation to be compelled to pay the debt of another, as in the case of a surety, and does pay it, the law implies a promise on the part of him for whom the money is paid, on which an action may be sustained, for in such case, it is not a voluntary but a compulsory payment.
In this case there was no debt due by the defendants'  [**30]  intestate, and the payment made by the plaintiffs was on account of a contract entered into between the commissioners and the man who did the paving. But if there had been a debt due by the defendants' intestate to the workman who did the paving, which the plaintiffs were not compelled to pay, a voluntary payment 

 [*498]  by the plaintiffs without the authority or request of the defendants' intestate could not raise an assumpsit against him; and there is no evidence of any such authority or request. Or if the defendants' intestate was indebted to the plaintiffs on account of the taxes imposed, that liability would not sustain a count for money paid, laid out and expended, which is the fifth count in the declaration in this case.
And we can perceive no ground on which the construction prayed for to the jury, that the plaintiffs were entitled to recover on the sixth count for work and labor done, &c. could have been properly given. The defendants' intestate was under no legal obligation imposed by the ordinance, to pay for the paving done; and the work was not done at his instance, but by the plaintiffs, under and in pursuance of one of their own ordinances, and in the supposed exercise [**31]  of their corporate powers.
We concur therefore in opinion with the court below on all the bills of exceptions.
JUDGMENT AFFIRMED.  

2 of 44 DOCUMENTS 

KIERSTED vs. THE STATE, use of COSTELLO. MORROW vs. THE STATE, use of ISRAEL. CHAMBERLAIN vs. THE STATE, use of KEILER.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

1 G. & J. 231; 1829 Md. LEXIS 20 

December, 1829, Decided 

PRIOR HISTORY:
 [**1]   KIERSTED vs. THE STATE, use of COSTELLO. Appeal from Baltimore County Court. The first of these appeals was an action of debt on a bond executed by N. Kimball, an applicant for the benefit of the insolvent laws, with the appellant (the defendant below) as his surety, brought at the instance and for the use of Costello, claiming to be a creditor of the insolvent. The defendant pleaded general performance by Kimball, to which the plaintiff replied, that Kimball was indebted to Costello in the sum of $ 31 64, and that Kimball did not make his personal appearance before the judges of Baltimore County Court, at &c. on the first Saturday of September term, 1821, then and there to answer such allegations and interrogatories, as his creditors, or any of them, might have filed against him, whereby the plaintiff sustained damage to the amount of $ 64, &c. The defendant rejoined that Kimball was not indebted to Costello in the said sum of $ 31 64, or any part thereof; and that no allegations or interrogatories were ever filed with the said court, to be answered by Kimball on the first Saturday of September, 1821, or at any other time, by the creditors of Kimball, or any of them. Issue joined.  [**2]  

At the trial, the plaintiff offered in evidence the bond upon which this action was brought, executed by Nathaniel Kimball and Luke Kiersted, (the defendant) to the State of Maryland, on the 31st of January, 1821, in the penal sum of $ 600, and conditioned as follows, viz. "The condition of the above obligation is such, that if the above bound Nathaniel Kimball shall make his personal appearance before the Commissioners of Insolvent Debtors for the City and County of Baltimore, at the Court House, in the said city, on the second day of April next, at four o'clock in the afternoon, and answer such interrogatories as may be propounded to him by any of his creditors, agreeably to the act of Assembly, entitled, an act relating to Insolvent Debtors, in the City and County of Baltimore, and shall also make his personal appearance before the judges of Baltimore County Court, at the court house, in the city of Baltimore, on the first Saturday of September term next, then and there to answer such allegations and interrogatories as the creditors of the said Nathaniel Kimball, or any of them, may have filed against him, agreeably to the said act of Assembly, and the act, entitled, an act [**3]  for the relief of sundry insolvent debtors, and the several supplements thereto, and continue in court, until duly discharged, then the above obligation to be void, else to be and remain in full force and virtue in law."

The plaintiff proved the execution of the said bond by the subscribing witness thereto, and then gave in evidence a warrant issued on the 15th of March, 1821, by a justice of the peace of Baltimore County, against the said Kimball, to answer unto the said Costello in a plea of debt, &c. upon which said warrant was thereon endorsed, the following judgment which the plaintiff also offered in evidence.

"Judgment in favour of the plaintiff, for thirty-one dollars debt, and sixty-four cents costs, with interest until paid or satisfied. March 20, 1821."

"The above judgment is subject to the defendant's application for the benefit of the insolvent laws, for city and county of Baltimore."

The plaintiff also proved that Kimball did not make his personal appearance before the judges of Baltimore County Court, on the first Saturday in September, 1821; but did appear before the Commissioners of Insolvent Debtors. The defendant then proved that no allegations [**4]  or interrogatories were filed by either the said Costello, or by any of the creditors of said Kimball, either before the Commissioners of Insolvent Debtors or Baltimore County Court. The defendant then prayed the court to instruct the jury, that the plaintiff was not entitled to recover. Which instructions the court [Hanson and Ward, A. J.] refused to give.

The defendant excepted. Verdict that Kimball did not well and truly observe, perform, &c. all and singular, the articles, &c. in the condition of the writing, obligatory on his part to be performed, &c. and damages assessed to the sum of $ 37 65. Judgment upon the verdict against the defendant, for $ 600 debt and costs, with a memorandum that the judgment was to be released on payment of the said sum of $ 37 65, with interest from, &c. and costs. From this judgment the defendant appealed to this court.

MORROW vs. THE STATE, use of ISRAEL--Appeal from Baltimore County Court. This second appeal was also an action of debt brought on a writing obligatory entered into, to the State, on the 4th of May, 1821, by Hugh Ireton with William Morrow, (the defendant below, now appellant) as his surety, in the penalty of $ 500 conditioned,  [**5]  "that if the said Hugh Ireton shall make his personal appearance before the Commissioners of Insolvent Debtors for the city and county of Baltimore, at the Court House in the said city, on the 2d of July then next, at four o'clock in the afternoon, and answer such interrogatories as may be propounded to him by any of his creditors, agreeably to the act of Assembly, entitled, 'An act relating to insolvent debtors in the city and county of Baltimore.' And shall also make his personal appearance before the Judges of Baltimore County Court, at &c. on the first Saturday of September term then next, then and there to answer such allegations and interrogatories as the creditors of the said Hugh Ireton, or any of them may have filed against him, agreeably to the said act of Assembly, and the act, entitled, 'An act for the relief of sundry insolvent debtors,' and the several supplements thereto, and continue in court until duly discharged; then," &c. The defendant pleaded general performance, to which, there was a replication stating that the said Ireton, on the 4th of May, 1821, made application to the Commissioners of Insolvent Debtors for the city and county of Baltimore, for a discharge [**6]  under the insolvent laws of this State; that the Commissioners then ordered that the said Ireton should be discharged, and they did then appoint and fix the 2d of July, 1821, for the appearance of Ireton, before them at, &c. to answer such interrogatories as should be propounded to him by any of his creditors; and also did then appoint and fix the first Saturday of September term then next, of Baltimore County Court, then to answer such allegations and interrogatories, as the creditors of the said Ireton, or any of them might file against him, and to continue in court until duly discharged. That Beale Israel, being one of the creditors of Ireton, to a large amount, to wit, in the sum of $ 500, did file with the Commissioners of Insolvent Debtors for the city and county of Baltimore, before the said second of July, 1821, to wit, on the first of July, 1821, certain interrogatories to be answered by the said Ireton. That the said Ireton never did appear before the said Commissioners on the second of July, as aforesaid, or on any other day; and also that the said Ireton never appeared before Baltimore County Court, but absented himself therefrom, to deceive and defraud his creditors. Of [**7]  all which premises the defendant, afterwards, &c. had notice. And the said Beale Israel, at whose instance and for whose use this suit is instituted, was, by reason of the premises, prevented from suing and holding to bail the said Ireton, and hath never since been able to arrest the said Ireton, and hath by occasion of the premises, wholly lost his claim as aforesaid, on the said Ireton; and this, &c. The defendant rejoined to the replication that the said Ireton did appear before the said Commissioners on the said second of July, 1821, and that he also appeared before Baltimore County Court, and did not absent himself therefrom to deceive and defraud his creditors. Issue joined.

1. At the trial the plaintiff gave in evidence the application of Hugh Ireton, for the benefit of the insolvent laws of this State, and all the papers connected therewith; and also the docket entries of the Commissioners, in his case. The report of the Commissioners of Insolvent Debtors, for the city and county of Baltimore, dated the 22d of September, 1821, stated the following proceedings had before them, viz. the petition of Hugh Ireton of the city of Baltimore, praying for the benefit of the insolvent [**8]  laws, dated the 4th of May, 1821. A schedule of his property, real, personal and mixed, excluding the necessary wearing apparel and bedding of himself and his family, amounting (being household and kitchen furniture,) to $ 40. A list stating that there were no debts due to him. A list of his creditors, and among others Beale Israel, $ 41 66. The whole amount of his debts as stated, being $ 224 03. All of which was sworn to by the petitioner. Proof of the necessary residence of Ireton in the State, and that he was in custody, &c. The Commissioners then appointed and fixed the 2d of July then next, for the personal appearance of Ireton before them, at &c. "to answer such interrogatories as may be propounded to him by any of his creditors;" and they also appointed and fixed the first Saturday in the next September term of Baltimore County Court, for the final appearance of the said insolvent before the said court, "to answer such allegations as may be made against him by his creditors, or any of them, and for the final hearing of his said application." The bond entered into to the State of Maryland, by Hugh Ireton and William Morrow, on the 4th of May, 1821, in the penalty of $ 500, and [**9]  conditioned for the personal appearance of Ireton before the Commissioners, and before Baltimore County Court, on the respective days before mentioned. Also the bond entered into by Thomas Power with William Morrow, as his surety, to the State of Maryland, on the 4th of May, 1821, in the penalty of $ 500, reciting that the said Power had been appointed by the Commissioners, provisional trustee to take possession, for the benefit of the creditors of Ireton, of all his property, &c. and conditioned that Power well and faithfully perform the said trust, &c. Also a deed of conveyance, dated the 4th of May, 1821, executed by Ireton to Power, the provisional trustee, conveying all his property, &c. The certificate of Power, the provisional trustee, that he had received from Ireton all his property, &c. Then follows the personal discharge of Ireton, granted to him by the Commissioners. Certain interrogatories were then stated to have been propounded to Ireton on the part of Beale Israel, to which, answers were given by Ireton, and sworn to by him, on the 11th of July, 1821. The Commissioners then further reported to Baltimore County Court, "that having diligently inquired and examined into [**10]  the nature and circumstances of the said application, it appears upon such examination, that the said Ireton hath not complied with the terms and conditions of the said insolvent laws," &c. Whereupon it was considered and adjudged by Baltimore County Court, on the 22d of September, 1821, that the said Ireton was not entitled to the benefit of the acts of Assembly for the relief of insolvent debtors; and that, therefore, the prayer of the said petitioner ought not to be granted. The docket entries of the Commissioners on Ireton's petition, given in evidence as before mentioned, show that "the petition was filed on the 4th of May, 1821"--"Thomas Power was appointed provisional trustee"--that "the petitioner was to appear before the Commissioners, to answer interrogatories on the 2d July, 1821, and to appear before Baltimore County Court on the first Saturday of September term, 1821, for final discharge. His "personal discharge was filed," and "an order for publication delivered to the printer." On the "12th of May, 1821, interrogatories were filed--Answer filed." On the "2d of July, 1821, the petitioner appears--Provisional trustee continued. 22d of September, 1821, no appearance--No [**11]  benefit." The plaintiff then proved that the said Ireton, at the time of his said application, was, and still is, indebted to the said Israel, in the sum of $ 41 66. The defendant then prayed the court to direct the jury upon the foregoing evidence, that the plaintiff was not entitled to recover. Which direction the court [ARCHER, Ch. J. and Hanson and Ward, A. J.] refused to give. The defendant excepted.

2. The defendant then offered evidence to prove that the said Ireton, before, and at the time of his application, as set forth in the foregoing bill of exceptions, was extremely poor, and had no other property than that conveyed to his trustee, under the deed of trust aforesaid. To the admission of which evidence, the plaintiff objected. Which objection the court sustained. The defendant excepted; and the verdict being for $ 51, and judgment thereon rendered, for the penalty of the bond, &c. he appealed to this court.

CHAMBERLAIN vs. THE STATE, use of KIELER. This third case was an appeal from Frederick County Court, and also an action of debt on a writing obligatory entered into on the 24th of June, 1818, by the defendant, (now appellant,) with David Wagner and John Gilbert [**12]  as his sureties, to the State in the penalty of $ 1000, and conditioned for the appearance of the defendant in Frederick County Court on the first Monday of November then next, to answer the allegations of his creditors according to the provisions of an act of Assembly, entitled, "an act for the relief of sundry insolvent debtors, passed at November session, 1805, and the supplements thereto," and shall not depart the said court without the leave thereof. The defendant pleaded.--1. That the action ought not to be maintained, &c. because no creditor or creditors of the defendant at any time from the time of the making the said writing obligatory to the time of the commencement of this suit, made any allegation or allegations in Frederick County Court against the defendant, according to the provisions of the act, entitled, &c. or the supplements thereto, or any of them; and this he is ready to verify, &c. 2. That the action ought not to be maintained for the use of George Keiler, because the said Keiler did not at any time from the making of the writing obligatory aforesaid, to the commencement of this suit, make any allegation or allegations in Frederick County Court against the defendant,  [**13]  according to the provisions of the act of Assembly, entitled, &c. or of the supplements thereto, or any of them; and this he is ready to verify, &c. 3. That the defendant did make his personal appearance in Frederick County Court on the first Monday of November next ensuing, the date of the said writing obligatory, to answer the allegations of his creditors, according to the provisions of the act, &c. and did not depart the said court without the leave thereof; and this he is ready to verify, &c. To the first and second pleas there were general demurrers. To the third plea, a replication that the defendant did not make his personal appearance, &c. And that George Keiler was a creditor of the defendant to the amount of $ 61 96. Issue tendered and joined. The County Court ruled good the demurrers to the first and second pleas. Verdict on the issue to the replication to the third plea for the plaintiff. Judgment on the verdict, and the defendant appealed to this court.  

DISPOSITION:
JUDGMENTS AFFIRMED.  

HEADNOTES:

Where an applicant for a discharge under the acts relating to insolvent debtors, fails to appear according to the condition of the bond taken from him, an action in the name of the State, (the obligee) for the use of a creditor, may be maintained thereon, against the applicant's security in the bond. The pleadings must disclose, that the equitable plaintiff was a creditor of the insolvent, to a certain amount; and the applicant's failure to appear. The amount of the creditor's debt, is the measure of damages; and neither the poverty of the applicant, nor the fact, that no allegations were filed against him by creditors, constitutes a defence thereto.

Obligations in which many persons are interested, may be taken in the name of the State, whenever the law is silent in naming the obligees, to whom they are to be given.

A consistent and uniform practice under various acts of Assembly, passed in relation to the same subject, so fully establishes the contemporaneous construction of the first act in the system, that after twenty years, it has too long obtained, to be shaken and disturbed.

So bonds with condition for the appearance of insolvent debtors, made to the State as obligee, are sanctioned by the uniform practice of twenty years, although the acts of Assembly, under which they are required to be executed, contain no specific provision for making them to the State, and creditors may bring suits on them, for their use, though not expressly authorized by law to sue.  

COUNSEL:
Mitchell for the appellant contended,--1. That Costello had no right to bring this suit. 2. That the refusal of the court below to grant the defendant's prayer, was not authorised by law or the [**14]  evidence in the bill of exceptions. 3. That the verdict was void in law. 4. That the judgment was erroneous in form and substance.

If the condition of the bond was violated, no individual creditor could bring suit on it; if he could, it must be a creditor for whose debt the insolvent was imprisoned. This bond was given to the State, and no authority is given for its being put in suit for the use of an individual. Suppose there is a judgment given in this case, how are the other creditors to proceed? Can each of them bring a scire facias on this judgment; or must suits be brought on the bond for the use of each creditor? One judgment on the bond absorbs it. Where bonds are directed to be given to the State, a remedy is prescribed for suits being brought on them for the use of any individual who may be damnified--Such as on the bonds of sheriffs, executors, and administrators, &c. But there is no general law on the subject, as in Pennsylvania. 3 Yeates, 345. Corporation of Washington vs. Young, 10 Wheat. 406. By the act of 1805, ch. 110, sec. 11, the bond is directed to be given as a security for those creditors only, by whom the insolvent is imprisoned. 1807, ch. 150, sec. 3. 1808,  [**15]  ch. 71, sec. 2. 1816, ch. 221, sec. 2. 1821, ch. 250. Commonwealth vs. Hatch, 5 Mass. Rep. 191. The creditor must show himself to be such, and to what amount he has been damnified. Here the verdict does not find the matter in issue--How much the party was damnified. The issue is taken upon the fact, whether the insolvent was indebted, and whether any interrogatories had been filed; and the verdict is, that the insolvent did not perform, &c. A verdict is void if it does not state what damages have been sustained by the party. 5 Com. Dig. tit. Pleader, 524. 7 Bac. Ab. tit. Verdict (M.) 18, (R.) 37. Hambleton vs. Veere, 3. Saund. 171.

R. Johnson, for the appellee. The objection that Costello had no right to bring this action, comes too late, being after verdict. The assent to sue on the bond will be presumed to have been given. McMechen vs. The Mayor &c. of Baltimore, 2 Harr. & Johns. 41. In Corporation of Washington vs. Young, 10 Wheat. 409, the corporation refused to give permission to have the bond put in suit. The condition of the bond in question is for the benefit of all the creditors of the insolvent. Ought it to be otherwise? As to the objection to the verdict, it is now [**16]  too late to object to it. The issue was found by the jury in favour of the plaintiff, but it is incorrectly stated by the clerk. So far as the issue is as to the not filing allegations, it was an immaterial issue; for the creditors were not bound to file allegations until the insolvent appeared. 1 Chitty's Plead. 634. 2 Tidd's Pr. 813, 814. The verdict ascertains the debt. What ought to be the damages? They must be to the amount of the debt due to the creditor for whose use the action is brought. But it may be said that the bond was not forfeited, there being no allegations filed. The debtor must have appeared according to the condition of his bond, and in his plea in this suit he should have averred that fact. 5 Bac. Ab. tit. Obligation, (F.) 174. Archbishop of Canterbury vs. Willis, 1 Salk. 172.

Mitchell in reply. The defendant's pleading that no allegations were filed against the insolvent debtor, goes to the right of the equitable plaintiff to recover. There was no issue joined whether the insolvent debtor appeared or not. In this case, a motion in arrest of judgment would have prevailed; and if so, advantage may be taken of it on this appeal. There should have been proof [**17]  that permission was given to Costello to sue on the bond, as the defendant's prayer to the court was a general one, that the plaintiff could not recover. Here is a judgment, and it is a bar to any other action on the same bond.

Williams, (District Attorney of United States.) The points for the consideration of the court are--1. Whether the appearance bond of the insolvent debtor, has been legally given?

2. Whether the cestui que use can recover more than nominal damages, if he proves no damages? And he gave no evidence that he was damnified by the forfeiture of the bond.

3. The evidence offered by the defendant that cestui que use was not damnified, was rejected by the court below.

4. The damages should have been nominal.

1. No bond to the State is valid, unless given pursuant to some act of Assembly. Owings vs. Norwood, 2 Harr. & Johns. 108, (note.) The bond to be given by a trustee, under the act of 1805, ch. 110, sec. 4, is expressly required to be given to the State. But the bond required by the eleventh section to be given by the insolvent debtor for his appearance, &c. is not required to be so given--it is not said to whom the bond is to be given. By [**18]  the act of November, 1788, ch. 17, sec. 5, the trustee of an insolvent debtor was required to give bond to the State. By the act of 1791, ch. 73, sec. 3, the trustee to give bond to such person as the Chancellor should direct; and the Chancellor directed such bonds to be given to the Attorney General. The same provision is contained in the act of 1792, ch. 67, sec. 3. By the tenth section of that act, an imprisoned debtor, if required by the Chancellor, was to give bond: but it is not said to whom such bond was to be given. The practice seems to have been that the Chancellor directed the bond to be given to the sheriff of the county in which the debtor resided. Similar provisions are contained in the acts of 1793, ch. 68, sec. 3, 10. 1794, ch. 72, sec. 3, 10. 1795, ch. 82, sec. 3, 10. 1796, ch. 70, sec. 4, 11. By the act of 1797, ch. 82, sec. 7, the bonds of the debtors are to be given to the trustees. The act of 1797, ch. 97, sec. 4, 11, contains the same provisions as the act of 1796, ch. 70, sec. 4, 11, &c. Similar provisions are also contained in the acts of 1798, ch. 64, sec. 4, 11, and 1799, ch. 88, sec. 4, 11. By the act of 1804, ch. 110, sec. 4, trustees were required to give [**19]  bonds to the State. By the eleventh section of that act, imprisoned debtors, if required by the County Court, &c. are to give bonds with security, for their appearance, &c. but it is not said to whom such bonds were to be given. The act of 1805, ch. 110, sec. 4, 11, has the same provisions. The same expressions will be found in the act of 1808, ch. 71, sec. 2. We come now to the act of 1816, ch. 221, sec. 2, whereby the Commissioners of Insolvent Debtors for the city and county of Baltimore, are required to take a bond for the petitioner's appearance, &c. "with security to be by them approved." From all the preceding, it will be seen that there is no provision of law which authorises the giving of a bond by a petition for the benefit of the insolvent laws, to the State of Maryland. The bond of a trustee of an insolvent debtor is expressly provided to be for the use of the creditors of the insolvent, whereas the bond to be given by the debtor is not provided to be for such use. No suit can be maintained on a public bond, unless the law provides that persons damnified may bring suit on any such bond. This was the argument in M'Mechen vs. The Mayor, &c. of Baltimore, 3 Harr. & Johns.  [**20]  534. See the acts 1794, ch. 54, and 1798, ch. 101, sub-ch. 3, sec. 10, sub-ch. 12, sec. 5. And as analagous, he referred to 3 Saund. 412, 415 (note.) 1 T. R. 287. Kerr vs. The State, 3 Harr. & Johns. 560. Ellicott vs. The Levy Court, &c. 1 Harr. & Johns. 359.

2. The bond being given that the insolvent debtor shall appear, &c. cannot be for the benefit of the creditors, if he does not appear. At all events, the debtor failing to appear cannot subject the surety to the payment of all the debts due to creditors. In an action on a bond with a collateral condition to secure third parties, there ought to be some evidence of damage; or else, why should the plaintiff be permitted to sue? What interest has this creditor in this bond, (his name not appearing in it,) except because he is damnified by the non-appearance of his debtor? He ought to have given some slight evidence of injury sustained by the forfeit of the bond. It would be a violent presumption, without evidence and against evidence, to presume that he is damnified to the whole amount of his debt. And not he only, but all the other creditors. So that the surety of an insolvent debtor is to be overwhelmed, because, to relieve [**21]  his friend from imprisonment, he is his surety for his appearance. He may be, and no doubt, universally, sureties become so, because they know their principal is worth nothing or little, and, therefore, they can be very slightly injured by the forfeiture of the appearance. There is nothing in the law analogous to this doctrine. For with regard to special bail, or rather sureties in a bail bond, the presumption is, that the debtor is able to pay the debt, from which he absconds. But it is otherwise with respect to insolvent debtors.

3. But suppose the presumption not to be so in ordinary cases. In this case evidence was offered and rejected, to show actually that the principal had nothing, and, therefore, the creditor could have recovered nothing. All that could be done was to imprison him. This would be no satisfaction of the debt, but merely a penalty for fraud. Under our insolvent laws, imprisonment is no satisfaction for debts. It is used to coerce debtors to give up their property, and as a punishment for fraud. Here the proof is, that the debtor had given up all his property, of course, all that could be done would be to imprison him.

4. If there was such a privity between [**22]  this creditor and the obligors in the bond, that being forfeited, he could sue on it. Still if he was not actually damnified, he was only entitled to nominal damages. By the act of 1821, ch. 250, provision is made for the enlargement of the time for the appearance of the debtor, without requiring a new bond, and without the consent of the creditors. What then becomes of the old bond? 5 Johns. Rep. 42. 9. Johns. Rep. 300. 10 Johns. Rep. 563. 2 Johns. Rep. 205.

Meredith, for the appellee.

This suit was brought in the name of the state, for the use of one of the creditors of an insolvent, against his surety, in a bond given for the appearance of the debtor, in pursuance of the act of 1816, chap. 221, sec. 2.

In the argument on the part of the appellant, it was made a question whether there could be any recovery on the bond in this case, since there is no specific provision in any part of the law referred to for taking bonds of this description in the name of the State; and it is upon this question alone that the counsel for the appellee, will detain the court. It is certainly true, that the act in question does not designate the obligee in these bonds. After providing for [**23]  the appointment of the provisional trustee, the section above cited, proceeds to direct, "that the Commissioners shall take bond, with security, to be by them approved, for the appearance of such insolvent, to answer such interrogatories as may be propounded to him by any of his creditors, or such allegations as may be filed against him, within the time hereinafter mentioned." But, in the similar provision, which is to be found in the acts of 1805, ch. 110, sec. 11; 1807, ch. 150, sec. 3; 1808, ch. 71, sec. 2; and 1817, ch. 183, sec. 1, there is no more particular designation of the obligee, than in the act of 1816; and yet the invariable practice has been from the passage of the first general insolvent law in 1805, to the present period, to take the appearance bonds of insolvent debtors in the name of the State, and the legality of doing so, it is believed, has never before been questioned. A construction, therefore, thus given by the courts throughout the State, and uniformly acted upon for upwards of twenty years, in the innumerable cases which have arisen under the insolvent law, should not be disturbed but for the strongest and most unanswerable reasons. Where the interpretation [**24]  of a law is doubtful, the exposition given to it immediately after its passage, when the intention of the Legislature is more certainly ascertained than at a later period, is entitled to great consideration, and generally is deemed decisive. Contemporanea expositio est fortissima in lege. 6 Bac. Ab. 385. Again, it is a rule in the construction of statutes that such an interpretation ought to be given as will prevent the object of the law from being defeated. 15 Johns. Rep. 358. If the objection to the bond in this case is a valid one, it is manifest that the provision which the Legislature intended for the security of creditors is rendered wholly inoperative. For if the bond cannot be rightly taken in the name of the State, because it is not so specifically directed, it cannot for precisely the same reason be taken in the name of any other obligee. And thus creditors are left without any security whatever, and the intention of the Legislature, which is obviously to substitute the appearance bond in the place of special bail, is completely frustrated. Legislative intention is often resorted to, to explain the meaning of laws. 15 Johns. Rep. 358. That intention may be collected from [**25]  other provisions in the same law, and looking to the provision with regard to the trustees bond, which is expressly directed to be taken in the name of the State by the act of 1805, it would seem that the Legislature must have intended that the appearance bond should also be given to the State, or they would have otherwise directed. Why should the one be taken in the name of the State and not the other? They are both for the security of creditors; the State, is not interested, but selected merely as a safe and permanent trustee for their benefit. Having once mentioned the form of a bond, it was not thought necessary to repeat it. And it may be remarked, that in the act of 1808, ch. 71, sec. 3, where both the trustees bond, and the appearance bond are mentioned, there is no specific direction as to either, with regard to the obligee; and yet it will scarcely be doubted, that a trustees' bond is under this law, which is the last upon the subject, properly and legally given in the name of the State. If, however, the bond in this case is not considered as being authorised by the act of 1816, in connexion with the preceding insolvent laws, the appellee insists that it is still a good bond [**26]  at common law, and that the State ought to be regarded as a trustee for the creditors, for whose benefit it was intended. This principle will be found to have been repeatedly settled in England and this country. The court, however, is particularly referred to. 2 Strange, 1137. 12 Mass. Rep. 367. Addison's (Penn.) Rep. 72, 84. That creditors may sue upon bonds of this description, notwithstanding there is no particular provision to that effect in the law under which they are given, the court is also referred to 4 Dall. Rep. 95. 5 Mass. Rep. 91, and M'Mechen vs. The Mayor, &c. of Baltimore, 3 Harr. & Johns. 534. See also 1 Binney's Rep. 370, as to the priority of those who first sue on official bonds, &c.

Taney (Attorney General of Maryland,) and Ross, for the appellant.

The act for the relief of insolvent debtors, 1805, ch. 110, and its several supplements, have for their object, the relief of insolvent debtors who comply with the provisions of those acts. The bond required by those acts (vide the act of 1807, ch. 150, sec. 3,) manifestly shews that the condition of the bond was, to answer allegations if filed, but not to make the debtor and his securities answerable to creditors [**27]  who had no allegations to make against the debtor. If the insolvent was a delinquent, and against whom the creditors thought they had a right to complain, and did complain in the form of allegations, then the condition of the bond was forfeited by the non-attendance of the insolvent debtor. As no allegations were filed in this case, it is proof that the insolvent debtor fully complied with the provisions of the insolvent laws; for it was not necessary, to enable the creditors to file allegations, that the insolvent debtor should be present. The condition of his bond was, to answer the allegations of his creditors, but if they have no allegations to make, or if they had, and made none, how can they derive a right for the non-performance of a condition, the breach of which was attended with no loss to them, nor invaded any of their statutory rights? To enable the creditors to recover on the insolvent debtors' bond, they must show they filed allegations against the petitioning debtor, and that he did not personally appear to answer those allegations as the condition of his bond required him to do.

Pigman, for the appellee. By the argument of the appellant's counsel, it appears that [**28]  the appellant contends that he is not liable to any creditor on his insolvent bond, as no allegations were filed against him. Now it is evident it was the intention of the act of Assembly, that the appearance of the insolvent should precede the filing allegations. The allegations are pleadings and could not be filed so as to call on Chamberlain to join issue until he was in court. The proper authority discharged him out of custody upon his bond to appear to answer allegations, evidently to come into court first, to enable the creditors to file allegations. If the words of the act of Assembly are particularly attended to, this will appear clearly to be the proper construction; and this construction the court below gave the words of the act of Assembly. It appears in the record that Chamberlain did not appear; of course, the condition of his bond was broken.  

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

OPINIONBY:
EARLE 

OPINION:

 [*246]  EARLE, J. delivered the opinion of the court, in the three preceding cases.
We propose to give a condensed view of these cases, and to decide them together. For although their pleadings are a little variant [**29]  from each other, they have all originated in the same 

 [*247]  kind of cause of action, and the principal questions presented by them on the argument are the same.
They are suits upon obligations given by insolvents to the State, conditioned to appear at certain times and places, to answer the interrogatories and allegations of their creditors, to be filed against them, which in each court were decided adversely to the obligors.
The first and chief question, arising out of them is a consideration whether actions can be maintained on these obligations, inasmuch as they have been taken in the name of the State of Maryland, and no express authority is given by law so to take them.
The act of 1805, ch. 110, is the first general insolvent law enacted, in this State, to which there have been many supplements; and since then various insolvent acts to suit the situation of the city and county of Baltimore, have been passed. All have been examined by the court, as well as some in favour of individuals, before and since 1805. In none of those acts is there any specific provision for taking these bonds of the insolvents in the name of the State, although by the act of 1805, and [**30]  several other acts, the courts, judges and commissioners, are to take of the imprisoned debtors, at the time of their discharge, bonds conditioned for their appearance to answer the allegations of their creditors, in penalties to be prescribed, and with security to be approved of by them. Notwithstanding the manner of taking these bonds, is no where specifically directed; we are assured, upon full inquiry, that they have been invariably passed to the State of Maryland, for more than twenty years past, whether taken by the courts, the judges, or the Commissioners of Insolvent Debtors for the city and county of Baltimore. What has produced this uniformity, it is not easy to say, unless it has been brought about by implicitly following the example of the courts and judges, upon whom it first devolved to execute these acts of Assembly. As no person was designated, in whose name the bonds were to be given, it is probable the courts and judges were prompted to the course pursued by the consideration, that the law in this particular could not be 

 [*248]  executed, without an obligee was supplied by them, and by reflecting, that for permanency and convenience, none could be selected,  [**31]  more suitable than the State itself, to which all official bonds were given, and other kinds of bonds, where a multiplicity of persons are concerned. And it may be, that they were conducted to this resolution, by reasoning upon the supposed intention of the Legislature, that these bonds should be taken in the name of the State, from the fourth section of the act of 1805, ch. 110, which directs the trustees of insolvents to give bond to the State. Whatever may have led to the practice, its consistency fully establishes the cotemporaneous construction of the first act, in this system of laws, and we think it has too long obtained, to be at this time shaken and disturbed. And we further think, that to promote the execution of similar legislative provisions, it may be well received as a settled rule for the government of our courts of justice, that obligations in which many persons are interested, be taken in the name of the State of Maryland, whenever the law is silent in naming the obligees to whom they are to be given.
Another question insisted on by the appellants in the argument of this cause is, whether the appellees could sue these bonds for their use, there being no provision [**32]  in any of the insolvent acts, to enable them thus to sue. This point we consider settled in this court, by the cases of M'Mechen vs. The Mayor and City Council of Baltimore, use of A. Storey, and M'Mechen vs. The Mayor and City Council of Baltimore, use of Hollingsworth, & Williams, 2 H. & J. 41, and 3 H. & J. 534. They were suits on an auctioneer's bond, taken under an ordinance of the city, which did not authorize any person, in particular, to sue it. They were nevertheless sustained, and the judgment of the County Court therein, affirmed by this court.
A still further question was moved on the argument of this case, by the appellant's counsel. They contended, that if those obligations were liable to be sued by the appellees, nothing could be recovered by them but nominal damages. Upon this subject, we are of opinion, there is very little room for doubt. In directing these bonds to be taken, the Legislature must have 

 [*249]  had in view the interest of the creditors of the insolvents, and not merely to authorize them to sue to run the insolvents and their securities, to useless costs. To give them additional security for their debts,  [**33]  by obliging the insolvents to enter into stipulations, in nature of bail bonds, was the object; and the amount of their individual demands, we should think, must be the measure of the damages to be recovered by them respectively. These cases were partly argued upon notes, which were not filed until the close of the last term, and could not have been earlier disposed of by us. They appear to have been properly decided in every respect, by the County Courts, and we affirm their judgments, concurring with them in the opinions expressed on the exceptions, in the two first, and on the demurrers in the last case.
JUDGMENTS AFFIRMED.  

3 of 44 DOCUMENTS 

DUGAN vs. THE MAYOR AND CITY COUNCIL OF BALTIMORE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

1 G. & J. 499; 1829 Md. LEXIS 41 

December, 1829, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court. Assumpsit to recover a sum of money claimed for taxes imposed by the appellees, (the plaintiffs in the court below) on the appellant, (the defendant in that court.) It was agreed, that the acts of Assembly and ordinances referred to in the bill of exceptions, might be read from the printed copies, without being inserted in the record.

At the trial, the plaintiffs offered in evidence to the jury, an act of the General Assembly of Maryland, entitled: "An act to erect Baltimore town, in Baltimore county, into a city, and to incorporate the inhabitants thereof." Passed at November session, 1796, ch. 68. And also offered in evidence, an ordinance of the Mayor and City Council of Baltimore, entitled: "An ordinance to impose a tax on the real and personal property within the city of Baltimore, and to provide for the collection of the same for the year 1817, and for other purposes." and also offered in evidence, that for the year 1817, the said defendant was duly and legally assessed with real and personal property in the city of Baltimore, liable to taxation, to the value of $ 16,388, and that the taxes properly chargeable to the said defendant for [**2]  the said year, amounted to the sum of $ 160 93, to recover which sum this suit was brought. The plaintiffs further offered in evidence, that Thomas Rogers was the collector of taxes for the said year, and that Peregrine Welsh was employed by the said Thomas Rogers as a clerk and agent to assist in the collection of the same, and that some time in the year 1818, the said Peregrine Welsh called on the defendant and demanded payment of the said sum of $ 160 92, due as aforesaid, but that the said defendant refused to pay the same, alleging that the Mayor and City Council of Baltimore were indebted to him. Whereupon, the said defendant prayed the opinion and direction of the court to the jury, that the plaintiffs having offered no evidence to prove, that the said collector made and delivered to the said defendant, an account in writing of the assessment and tax of the said defendant, containing the items in words at length, and the amount thereof in figures, before the first day of June, in the year 1817, or at any time before the commencement of this suit, were not entitled to recover in this action; and the defendant further prayed the opinion and direction of the court to the jury,  [**3]  that upon the evidence given in this cause, the plaintiffs were not entitled to recover in this action; which opinions and directions the court refused to give to the jury, but were of opinion and so directed the jury, that if the jury believed the evidence given in this cause, the plaintiffs were entitled to recover. The defendant excepted, and the verdict and judgment being against him, he prosecuted this appeal.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

The imposition and assessment of a tax by the Mayor and City Council of Baltimore, under and in pursuance of their charter, creates a legal obligation to pay such tax, on which the law raises an implied assumpsit by the person taxed.

By the charter of the City of Baltimore, (act of 1796, ch. 68, sec. 10,) it is provided "that the person or persons appointed to collect any tax imposed in virtue of the powers granted by this act, shall have authority to collect the same by distress, and sale of the goods, and chattels, of the person chargeable therewith," and by the ordinance of the corporate authorities of that city of the 27th March, 1817, a tax was imposed, and the collector directed to deliver to each taxable person, an account of his assessment and tax in writing, before a given day; and if the tax should not be paid within a month thereafter, to proceed without delay to recover it agreeably to the mode prescribed by the act of incorporation. In an action brought by the Mayor and City Council of Baltimore to recover a tax imposed by the ordinance of 1817, it was held unnecessary to prove, that the Collector had delivered the account before mentioned to the defendant; and that his liability to be sued, in no manner depended upon the diligence or negligence of the collector. 

COUNSEL:
R. Johnson, for the appellant.

J. Scott, for the appellee.  

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

OPINIONBY:
BUCHANAN 

OPINION:

 [*500]  BUCHANAN, Ch. J. delivered the opinion of the court.
By the 10th section of the act of 1796, the act of incorporation 

 [*501]  of the city of Baltimore, authority is given to the person or persons appointed to collect any tax imposed, in virtue of the powers granted by that act, to collect the same by distress and sale of the goods of the persons chargeable therewith; with a provision, that if the tax imposed, shall be chargeable on real property, it may be recovered by action of debt, or attachment, in case no goods can be found liable to be distrained upon.
This suit [**4]  was brought to recover an amount of taxes, claimed to be due and owing by the appellant, for the year 1817, in virtue of an ordinance passed by the corporation on the 27th of March, in the year 1817: "To impose a tax on the real and personal property within the city of Baltimore." It is not contended, that the corporation had not the power by the charter to impose taxes; nor is it denied that the particular ordinance imposing the tax in question, was passed in pursuance of the powers derived under the charter. But it is urged, that unless the provisions of the fifth section of the ordinance, directing the collector to deliver to each taxable person, &c. an account in writing, of his assessment and tax, containing the items in words at length, and the amount thereof in figures, before the 1st of June next, after the passage of the ordinance were pursued, no action would lie; and that there being no evidence of a delivery, &c. by the collector to the appellant, of such an account as is directed by the ordinance, this action cannot be maintained, and in support of this proposition, the stat. of 2d Geo. 2d, ch. 23, sec. 23, and the decisions under it are relied on.  [**5]  But the analogy insisted on is not perceived. The language of the stat. of 2d Geo. 2d, is imperative; it provides that no attorney or solicitor shall commence or maintain any action or suit, until the expiration of a month or more, after he shall have delivered a bill of his fees, &c. to the party to be charged, &c. thus expressly declaring, that no action shall either be brought or maintained, until the provisions of the statute have been first complied with; but that is not the character of this ordinance; it neither expressly forbids the bringing of a suit before the delivery of the account, nor impliedly, by authorizing or directing a suit to be brought, in the event of the tax not being 

 [*502]  paid by the time prescribed. It has no relation to the bringing of a suit, but only to the summary mode provided by the charter of collecting the tax by a distress and sale of the goods. It is seen that by the 10th section of the charter, the person appointed to collect the taxes, imposed by the corporation, is empowered to do so by distress and sale of the goods of the persons chargeable with them. The 4th section of the ordinance provides for the appointment of a collector. [**6]  And the 5th section, the office of which is to prescribe his duties, after providing that he shall deliver to each taxable person, an account of his assessment and tax in writing, on or before the first of June next, after the passing of the ordinance, goes on to direct him, if the tax should not be paid by the first of July following, to proceed without delay to recover it, agreeably to the mode prescribed by the act of incorporation, that is by distress and sale of the goods, and not by suit, which he had no authority either by the charter or ordinance to institute. It is true that the collector was not authorized to collect the tax by distress, and sale of the goods, without having first delivered an account of the assessment and tax to the party to be charged, according to the directions of the ordinance, who was entitled to that notice, before his property could be proceeded against in the summary mode provided by the charter, and without such notice his property could not be distrained upon and sold. But though his goods would be protected from distress and sale by the collector, it would not therefore follow, that he could not be sued by the corporation for the amount of the [**7]  taxes due. His liability to be sued or not, in no manner depended upon the diligence or negligence of the collector in the discharge of his duty, as prescribed by the fifth section of the ordinance, which has no relation to that subject.
In the Mayor and City Council vs. Howard, 6 H. & J. 383, it was decided by this court in relation to the 10th section of the act of incorporation, that the giving a remedy by distress or action of debt, was cumulative only, and did not take away the action arising by implication, on the legal obligation to pay a claim created by law. The tax for which this suit 

 [*503]  was brought was imposed by virtue of that act, the imposition and assessment of which created the legal obligation to pay, on which the law raised an implied assumpsit, independent of the notice required by the fifth section of the ordinance, as a foundation for a summary mode of recovery, and unaffected by the omission of the collector to do his duty--which omission (if an account was not delivered as required by the ordinance,) though it caused the loss of the right to collect the tax by distress and sale of the goods, left the right to recover on the [**8]  original implied assumpsit unimpaired--an assumpsit raised by the law, on the imposition and assessment of the tax, and not to arise on the delivery by the collector of an account of the assessment and tax.
JUDGMENT AFFIRMED.  

4 of 44 DOCUMENTS 

WINCHESTER, Trustee of WILLIAMS, vs. The UNION BANK OF MARYLAND.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

2 G. & J. 73; 1829 Md. LEXIS 8 

December, 1829, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court.

This was an action of Assumpsit brought by the appellant, as trustee of James Williams, against the appellees, the President and Directors of the Union Bank of Maryland. The declaration contained a count, for goods, wares, and merchandise, sold and delivered; for money paid, laid out, and expended; money had and received; and on an insimul computassent. Non assumpsit was pleaded, and issue.

At the trial, the plaintiff offered in evidence the insolvent papers of James Williams, consisting of the petition of the said James Williams to one of the judges of Baltimore County Court, setting forth his actual confinement in the gaol of Baltimore county, for debts which he was unable to pay, and his willingness to deliver up his property to the use of his creditors. This petition was accompanied with "a list of debts due by James Williams:" "of debts due, and property belonging to James Williams," and an affidavit of their truth; proof of Williams's residence in the State for the two years next preceding his application; the certificate of the sheriff of Baltimore county, of said Williams being in actual confinement for debt alone, with the reference [**2]  of the application by the judge aforesaid, to the commissioners of insolvent debtors; the bond of James Williams, with security for his appearance before the commissioners, and Baltimore County Court; the bond of George Winchester, dated 24th June, 1819, for the performance of the duties of provisional trustee of the said Williams; the conveyance from Williams to Winchester of all his property, in trust, for his creditors, duly acknowledged; the receipt of Winchester, as trustee, for all Williams's property; the certificate of the commissioners, that Winchester had been appointed provisional trustee, and had certified to them that he was in possession of Williams's property; the personal discharge granted by one of the judges of Baltimore County Court to Williams; the bond of George Winchester, (without security) to perform the duties of permanent trustee of the said Williams, dated 2d August, 1819; the certificate of the commissioners aforesaid, dated 25th September, 1819, addressed to Baltimore County Court, that they had examined Williams's case, that he had acted fairly and bona fide; and the final discharge awarded to Williams by said Court, from all debts due by him prior to [**3]  the 24th June, 1819, with the usual exception of subsequent acquisitions by gift, descent, bequest, devise, or distribution, in his own right.

And the plaintiff further offered in evidence, that the said James Williams stopped payment, and his notes were protested in and by the said Union Bank on the first day of June, 1819; he further offered in evidence, the record entries on the application of the said James Williams for the benefit of the insolvent laws of Maryland, from which it appeared that he applied for the benefit of said insolvent laws on the 24th day of June, 1819, and that George Winchester, the plaintiff, was appointed provisional and permanent trustee of said Williams, by the commissioners of insolvent debtors, and gave his single bond without security, for the faithful performance of his duty as such trustee. The plaintiff further offered in evidence, a deed of assignment from James Williams and John Gooding, of the brig Ariel and cargo, dated Baltimore, 4th June, 1819, to secure a debt previously due from the grantors to the bank, (a recital of which is not material to the questions ultimately decided,) and then proved that the said Union Bank accepted the said [**4]  brig and cargo at the valuation of sixty-five thousand dollars; and that some portion at least, if not all, the proceeds of the said brig and cargo, in money, came to the possession of, and was received by, the said Union Bank, before the commencement of this suit. Whereupon the defendants, by their counsel, prayed the Court to instruct and direct the jury, that the plaintiff was not entitled to recover, because he had not given bond, with security, for the faithful performance of his duty as trustee of the said James Williams; because there is no privity between the plaintiff, as trustee of James Williams, and the defendants, so as to enable him to support this suit; which instruction and direction the Court (ARCHER, Ch. J., and HANSON, A. J.) gave.

The plaintiff excepted; and the verdict and judgment being against him, he appealed to the Court of Appeals.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

In a suit by a trustee of an insolvent debtor, claiming in his character of trustee, a general issue plea does not admit the character in which the plaintiff sues.

To establish the right of such a trustee, the plaintiff, under the general issue, must prove every thing essential to the showing himself clothed with the character and authority of a trustee, which cannot be done by the production of the certificate of the commissioners of insolvent debtors, and the final discharge of the insolvent only, but all the proceedings must be exhibited.

The different insolvent laws of this State constitute one general system and must be construed together; and so construed, require a bond with security to be given, before a trustee can act as such, without which, he cannot be invested with the character and rights of a trustee. To establish his character as trustee, and his right to sue in that capacity, it is incumbent on the plaintiff to show that such a bond was given, by proof of the bond itself.  

COUNSEL:
R. Johnson and Raymond, for appellant, contended,

1. That the certificate of the commissioners of insolvent debtors, that the insolvent had complied with the requisitions of the statute, and the final discharge of the insolvent by the Court, is conclusive evidence of the regularity of the proceedings [**5]  in the insolvent debtors' court, and cannot be collaterally reviewed in a suit between the trustee and a debtor of the insolvent. 2. That under the act of 1816, establishing the insolvent debtors' court, a permanent trustee is not required to give bond, with security. 3. The defect, if it be one, of the trustee not having given bond, can only be taken advantage of by plea in abatement. They referred to Stark. Evid. 547, 548. Cox's Dig. title ex'r. &c. 14. Childress vs. Emory, 8 Wheat. 642. De Wolf vs. Rabaud, 1 Peters' Rep. 498. 3 Bac. Abr. 53. Kennedy vs. Boggs, 5 Harr. and Johns. 403.

Taney, (Attorney General) and Kennedy, for the appellees, referred to Childress vs. Emory, 8 Wheat. 671. 2 Stark. Evid. 168, (note.) The act of 1798, ch. 101, sub. ch. 3, s. 8. 2 Stark. Ev. 192. Snelgrove vs. Hunt, 3 Serg. and Low. 414. 2 Phill. Ev. 259, 289. Evans vs. Mann, Cowp. 569. Hunter vs. Potts, 4 Term Rep. 182. 3 Bac. Abr. 53. Harper vs. Hampton, 1 Harr. and Johns. 622. Johnson vs. Collings, 1 Easts. Rep. 98. 3 Bos. and Pull. 559. 3 East. 177. 1 Camp. 175. 2 Stark. Evid. 173. 1 Stark. Rep. 481.  

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

OPINIONBY:
BUCHANAN 

OPINION:

 [**6]  
 [*77]  BUCHANAN, Ch. J., delivered the opinion of the Court.
This is an action of assumpsit brought by the appellant in Baltimore County Court, as trustee of James Williams, an insolvent debtor.
The declaration contains the usual counts, for goods sold and delivered, money lent, &c., to which there is the general issue plea of non assumpsit.
The appellant claims in the character of trustee; and at the trial, for the purpose of proving his title, and right to recover, produced in evidence the papers and proceedings connected with the application and final discharge of Williams, the insolvent. By which it appears, that the bond given by the appellant for the performance of his duty as trustee, is without security, for which reason the Court below instructed the jury, that he was not entitled to recover. And it is here contended, 1st. That the certificate of the commissioners of insolvent debtors for the city and county of Baltimore, that Williams, the insolvent, had complied with all the requisitions of the insolvent laws, and his final discharge, are conclusive evidence of the regularity of the proceedings, and of the insolvency of Williams, and [**7]  of the appellant's right to sue in an action between him as trustee, and a debtor of the insolvent. 2d. That under the insolvent laws of the State, a trustee of an insolvent debtor discharged in the city of Baltimore, is not required to give bond, with security, for the faithful discharge of his duty. And 3d. That if a bond, with security, is required to be given by a trustee of an insolvent debtor, he not having given such a bond, can only be taken advantage of by a debtor of the insolvent, in a suit by the trustee, by a plea in abatement, and not on a plea of non assumpsit.
The whole of these points were raised in argument, and elaborately discussed, in the case of Houck vs. Crouse, decided by this Court at June Term, 1828, in which it 

 [*78]  was held, that in a suit by a trustee of an insolvent debtor, claiming in his character of trustee, and not in his own right, a general issue plea does not admit the character in which the plaintiff sues, but that such a suit is analogous to the case of an assignee of a bankrupt claiming in that character; and that on the general issue, the plaintiff must prove every thing essential to the showing himself clothed with the character [**8]  and authority of a trustee; which could not be done by the production of the certificate of the commissioners and the final discharge of the insolvent only, but that all the proceedings must be exhibited. That the different insolvent laws of the State constitute one general system, and must be construed together; and so construed, require a bond, with security, to be given by the trustee, before he can act as such, without which he cannot be invested with the character and rights of a trustee. That to establish his character as trustee, and right to sue in that capacity, it is incumbent on the plaintiff to show that such a bond was given, by proof of the bond itself, and not by the production merely of the certificate of the commissioners, that the insolvent had complied with all the requisitions of the insolvent laws, and his final discharge; and that if he does not do so, the defendant is not driven to a plea in abatement, but may take advantage of it on the general issue. And we have heard nothing in the argument of this case to induce a departure from what was decided in the case of Houck vs. Crouse. We concur, therefore, with the Court below, in the instruction given to the [**9]  jury.
JUDGMENT AFFIRMED.  

5 of 44 DOCUMENTS 

GIRAUD'S Lessee vs. HUGHES, et al: 

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

1 G. & J. 249; 1829 Md. LEXIS 21 

December, 1829, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court. Ejectment for a tract of land called Augustus's Discovery Resurveyed. The defendants (now appellees) took defence on warrant, and plots were returned. Not guilty was pleaded and issue joined. The plaintiff made claim and pretension for all that tract or parcel of land, called Augustus's Discovery Resurveyed, as located on the plots.

The defence was taken under the patent of a tract of land, called Gist's Inspection, and for certain land lying between the 9th and 10th lines of said tract, as originally surveyed, and the present shores of the river Patapsco, which land was covered by the plaintiff's claim. This action was originally instituted against Christopher Hughes, and upon his death, his heirs at law, the present appellees, were made defendants.

The plots returned and filed in this cause, showed that the 9th and 10th lines of Gist's Inspection, (being on the N. E. corner, and Eastern side of said tract) according to their original location, run into the water of the river Patapsco:--That the part of said tract conveyed by J. M. Porter to Christopher Hughes, was also adjacent to the water, and of, the Northern and Eastern parts of [**2]  the whole tract:--That the part of C. Hughes' purchase which he conveyed to Leonard Harbaugh, was in fact bounded by the waters of the Patapsco on the N. and E., by Montgomery street on the south, and by Hughes' purchase from Porter on the West:--That a certain permission which the Port Wardens of Baltimore in the year 1786, granted to Leonard Harbaugh to make a wharf, commenced to the N. and W. of his purchase from Hughes (at the beginning of Hughes' purchase from Porter, and at the East side of Henry street) and extended from such beginning, first N. then E. (being to the North of one of the lines of the lot which C. Hughes then owned, and extending nearly parallel with and along its whole Northern front on the river) then South, and then West, until it reached the shores of the Patapsco at the S. E. corner of Harbaugh's lot, and the intersection North side of Montgomery street with the water:--that the said wharf, as far as actually constructed, did not include more of the shores of the Patapsco than were immediately adjacent to the water lines of Harbaugh's lot, purchased from Hughes; and was much less extensive than the permission from the Port Wardens, not extending either so [**3]  far North or West as the lines of that permission purported to authorize:--That the tract of land called Augustus's Discovery Resurveyed, lay to the N. and E. of the 9th and 10th lines of Gist's Inspection, and clear of those lines and clear of that tract as originally run according to the courses and distances of the patent--that Augustus's Discovery Resurveyed, covered a considerable part of the space, included in the lines of the permission of the Port Wardens to Harbaugh--That the shores of the river Patapsco, when the action was brought, ran along those outlines of Augustus's Discovery Resurveyed, which are adjacent to the water--and that the shores of the said river had in fact been extended from West to East, the distance from the East outlines of Gist's Inspection, to the East outlines of Augustus's Discovery Resurveyed, since Gist's Inspection was originally surveyed.

1. At the trial the plaintiff gave in evidence a patent to himself for the tract claimed by him, dated in 1813, and proved its location on the plots, to be correct--and he also proved that Augustus's Discovery Resurveyed, according to its true location, ran clear of the original lines of Gist's Inspection,  [**4]  which was the elder tract. And that the tenth line of Gist's Inspection, mentioned and called for in the said patents, was correctly located on the said plots--that the beginning of a tract of land called Augustus's Discovery, was correctly located, and that the beginning of the tract of land called Augustus's Discovery Resurveyed, was also correctly located, and that the beginning of both of the said tracts is in the said tenth line of Gist's Inspection. And he also offered in evidence a patent for the tract of land called Gist's Inspection, bearing date on the 9th of July, 1732, which contained no call for the waters of the Patapsco--that it is correctly located--and that Montgomery street is correctly located upon the plots. The defendants then proved that one John Mercer Porter, on the 6th of June, 1782, was seized in fee simple of the said tract of land called Gist's Inspection, at which time he conveyed to Christopher Hughes part of the said land, the lines of which part on the north and east sides, in fact, ran into the river Patapsco, and offered evidence that the same is truly located--and also gave evidence, that the said Hughes took possession under said deed of the land [**5]  so conveyed to him. The plaintiff then read in evidence a lease from said Hughes to one Leonard Harbaugh, for part of the said Hughes, the defendants purchase, from Porter, lying adjacent to the water on the north-east and eastern lines thereof, leaving the said Hughes, however, one line on the north side of his lot purchased from Porter, adjacent to the shores of the river Patapsco--And that the said Harbaugh, in the year 1786 or 1787, commenced the building of a wharf at the said lot, and continued working at the same till the year 1789, when he quit working there, and abandoned the property; and that said Hughes then took possession of the same, and by himself, his tenants, and the defendants his heirs at law, have held it ever since; and that the said Harbaugh had laid and extended the logs of said wharf as the same are located on the plots, and had the same filled up in the middle and north side thereof, and partly so on the east and south part of the same; that the logs of said wharf, so made, have by injuries and decay in several parts, fallen down, (the top log entirely around,) and have not been repaired since; that part of the ground filled up within said logs, has been,  [**6]  and still is used and occupied as a Distillery of Turpentine, and that the water flows all around over the logs of said wharf, and within the same from ten to twenty feet according to the state of the tides. The defendants then offered evidence by William Patterson and Samuel Smith, witnesses sworn and examined, that they were members of the Board of Wardens for the port of Baltimore Town, in the years 1785 and 1786, and for some time after--that all the other members of the said board, at that time, as also their then clerk, are since dead. That the said board had, at that time, a common seal, which had been adopted, and was used by the said board, that it was the general custom and practice of the board, to direct and have their official acts or proceedings, when given out to individuals, regularly signed and attested under the seal aforesaid, that they have no knowledge what has become of the said seal, or whether it is in being at this time or not. And also offered evidence by John Purviance, Esq. that he was clerk to said Board of Wardens in the year 1795, and for some time previous; that the said Board, during the time of his being clerk, had and used a common seal to attest [**7]  their official acts and proceedings, which he understood and believed to be the same which the Board first adopted. That when he resigned his clerkship, the said seal, with the books and papers of the Board, were given over to his successor--And also proved by the same witness that one Samuel Vincent, who is now deceased, was the last clerk to the said Board, whose powers ceased in the year 1797, when the act incorporating the Mayor and City Council of Baltimore, went into effect and operation. And also proved by the same witness, that Richard Moale, who was the first Register, and James Calhoun, who was the first Mayor, have both been dead several years. And also offered in evidence by Emanuel Kent, examined as a witness, that he is and has been, for about two years past, the Register of the City of Baltimore, and as such Register it belongs to him to have the care and keeping of the public books, papers and proceedings of or belonging to the Mayor and City Council of Baltimore, and also those of the former Boards of Commissioners of Baltimore Town, the special Commissioners and Wardens of the port of Baltimore Town, and the seals of the said Commissioners, if any are in being. That [**8]  he has no knowledge of the seal used by said Board of Wardens--that he hath never seen it--that he hath enquired and examined for the said seal in his office, and it cannot be found there or any where else, that he knows of, and also proved by the said witness, that a book which he now produces, came into his care and keeping as Register, when appointed, from his predecessor in office, and is one of the public books of the Mayor and City Council of Baltimore, and is by him believed and considered to be what it purports to be, a book containing the proceedings of the former Board of Wardens of the port of Baltimore Town. And also proved by the said witnesses, Patterson, Smith and Purviance, that the said book is the original book that was kept by the said Board of Wardens, in which were made and contained minutes and entries of their acts and proceedings. And also proved by John Eager Howard, that the said Leonard Harbaugh removed from the State of Maryland to the City of Washington, in the year 1791, where he resided until his death, two years or more since, except about two years whilst he was in Frederick county, and for a short time in Baltimore, and returned to Washington. The [**9]  defendants then offered to read in evidence the following entries made in the said book, to wit: "At a meeting of the Wardens of the Port of Baltimore, July 5th, 1785, present Samuel Smith, Richard Ridgley, John Sterett, William Patterson, Samuel Purviance, Chairman--the board received the application of Mr. Leonard Harbaugh for permission to extend a wharf on Luns' Point, according to the plan annexed to his petition, which was read and ordered to lie for further consideration." "At a meeting of the Board of Wardens for the Port of Baltimore, September 28, 1786, present Samuel Purviance, William Patterson, Samuel Smith, Thomas Russell, Thomas Elliot, Daniel Bowly, the board having taken into consideration the application of Leonard Harbaugh, for extending his wharf on Luns' Point, agree that he be permitted to extend the same to the following courses and lines laid down as limits, viz: Beginning at a stone set up at the present waters edge at the east side of Henry street, marked C, H, No. 45, and running north two degrees, west eight perches, then north eighty-eight degrees, east twenty-eight perches, then south fifty-six degrees thirty minutes, east ten perches and one quarter of [**10]  a perch, thence south thirty-nine degrees forty minutes, east ten perches and one quarter of a perch, thence south twenty-three degrees, east ten perches and one quarter of a perch, thence south ten degrees fifteen minutes, east five perches and a half a perch, thence south eighty-eight degrees, west parallel with the second line until it intersects the shore on the north side of Montgomery street,--ordered that permission be granted accordingly,"--As the best evidence now to be had of the matters set forth and contained in the said entries, and for the purpose with the other evidence of the better enabling and authorizing the jury to presume and find that permission as stated in said last entry, had been in due form of law granted by the said board to said Harbaugh, to build a wharf as therein stated--And also proved that the lines of the permission in the said entry mentioned are truly located on the plots. The plaintiff objected to the admission of the said entries in the said books as evidence, and did also object to the admission of all the said parol evidence about the said seal, and did then and there assert before the court, that the said evidence was not proper to go to the [**11]  jury. But the said court [HANSON and WARD, A. J.] did then and there declare and deliver their opinion that the said evidence, on the part of the defendants, ought to be admitted, and did permit and suffer the same to go to the jury. The plaintiff excepted.

2. The plaintiff in addition to the matters contained in the first bill of exceptions, further offered in evidence, a verdict and judgment rendered between the same parties in this court at the present term for a part of the hereinbefore mentioned tract or parcel of land called Gist's Inspection. The defendants then in addition to the matters before offered in evidence by them, proved that from fifty to fifty-five years ago the shore of the basin of Baltimore, passed at common tides as located on the plots in this cause, in the most western position of said shore, from a small plank enclosure on the south side of Montgomery street, standing at the east end of a brick distillery of the lessor of the plaintiff, and running thence northwardly near a pump now standing, and thence passing between two stones on the north side of Hughes street, at the intersection or corner of that street and Leonard street, which several objects [**12]  were pointed out by the witnesses to the surveyor in making the survey in this cause. And they also proved by a certain (Gould) that he when a boy, had paddled about in a canoe on the shoal water of the said basin, at or near where said pump now stands. It was then admitted by the parties, "that the several water lines or shores located by either party in this cause, show and designate where the tide water of the Patapsco river or basin of Baltimore flowed at different periods of time, receding gradually eastwardly to where the same now are shown by the most eastward location thereof, on the plots, and that the lines of Gist's Inspection when the same was granted, including part of the sixth line thereof, from the end of said line, ran into the water of the Patapsco or basin of Baltimore Town, to the end of the tenth line thereof; and that the above lines are so located, except a small part of the south end of the tenth line." The defendants then prayed the court to instruct the jury, that if they believed the matters so offered in evidence, the plaintiff was not entitled to recover. Which instruction the court gave. The plaintiff excepted; and the verdict and judgment being against [**13]  him, he appealed to this court.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

It is true as a general principle, that the lines of a tract of land originally run by course and distance, without calls, must be confined to the course and distance, and cannot be extended beyond them.

Where a tract of land lies adjacent or contiguous to a navigable river, or water, any increase of the soil, formed by the water gradually, or imperceptibly receding, or any gain by alluvion in the same manner, shall, as a compensation for what it may lose in other respects, belong to the proprietor of the adjacent or contiguous land. It is not upon the principle that the land calls for the water, but, because it adjoins the water, that the owner acquires a title to the soil so formed.

In ejectment it appeared that the land for which the action was brought, and which had been recently patented as vacant land, had been formed by the gradual recess of the waters on the shores of the river Patapsco; and that another tract of land the lines of which ran into, though they did not call for the water, where the recession took place, had been patented many years before. The defendant claiming title under the grant of this last tract, HELD that the action could not be sustained.

The Port Wardens of Baltimore by the act of 1783, ch. 24, were authorized to grant permissions to make wharves, but in order to vest a title in any such wharf, it is essential by the provisions of the act of 1745, ch. 9, sec. 10, that the grantee should have completed it according to his permission. 

COUNSEL:
Learned, for the appellant contended, 1. That thea ppellant (the plaintiff below) derives his title to the land in dispute from the State of Maryland, in whom the title was at the time of the grant to his lessor.

2. That the patent for Gist's Inspection, under which the defendants claim to hold said land, contains a course and distance location only, and the land in dispute lies entirely without the lines of that tract.

3. That the defendants cannot extend their lines of the tract of land called Gist's Inspection, so as to take in any alluvial formations, without the lines of said tract according to its course and distance location, as laid down upon the plots. The patent not having called for the water in a single point.

4. That the lines of the deed from Mercer Porter to Hughes, for a part of the tract of land called Gist's Inspection, cannot pass a title to any land lying without the lines of the whole tract, according to its course and distance location; but that the second line of Porter's deed to Hughes must terminate at the outlines of the original tract.

5. That land covered by navigable water belongs [**14]  to the State, and is the subject of a grant; subject however to the common use of fishing and navigation, &c.

6. That there is no alluvial formation appurtenant to the land in dispute in this cause, to which the defendants can claim title as riparian proprietor, so as to enable them to follow the recession of the water of the basin.

7. That by the act of Assembly the permit of the Port Wardens of Baltimore, to build a wharf, was contingent in its effects, and did not divest the State of its title to the land covered by the permit, but in the event of the completion and maintainance of a wharf, that should be a permanent and beneficial improvement.

8. That the wharf mentioned in the proceedings in this cause was never completed, and is not such a permanent and beneficial improvement, as by the act of Assembly, will vest a title in fee in the land embraced in the Port Wardens' permit, in the maker of said wharf, and those who may claim under him.

9. That the defendants having caused the tract of land called Gist's Inspection to be located by metes and bounds, under a commission obtained by their ancestor for that purpose, are now estopped from extending the lines [**15]  of said tract of land, so as to take in other land lying without the lines of said tract, at the time said commission was executed.

10. That the title to the land in dispute, out of the plaintiff, on which the defendants rely in their defence, is not such a title in the defendants or a stranger, as is sufficient to prevent the plaintiff from recovering.

The grant for Gist's Inspection, dated the 9th of July 1732, has no calls in it, but all the lines are course and distance. When the survey was made the courses ran into the water, and the grant was for land covered by water. The points arising in the first bill of exceptions are waived for the present. On the second bill of exceptions the material questions arise. It has been decided by this court that the title to lands covered by navigable water remains in the State. Brown vs. Kennedy, 5. Harr. & Johns. 195. Land so situated remains so until granted by the State. Has this land been granted by the State? We contend that it was not until it was granted to the lessor of the plaintiff. This tract lies without the lines of Gist's Inspection; and Gist's Inspection must be located course and distance; and so located, it does not [**16]  interfere with the land granted to the lessor of the plaintiff. There is no call to the river in the grant of Gist's Inspection. It cannot, therefore, bind on the river. Imperative calls are to be gratified, and course and distance disregarded. This is settled law. When the grant of a tract of land is by courses and distances only, the grantee cannot take alluvial formations. All such formations belong to the State, unless granted to another by the State. The proprietary abolished calls in all grants, in order to prevent more land being included in any grant than the party paid for and contracted to purchase. The evidence in this cause shows that there were no alluvial formations. Harbaugh had permission from the Port Wardens to make a wharf, which he commenced and worked some time on it, but finally abandoned it. The ancestor of the defendants then took possession, having before then leased the adjoining property to Harbaugh. By that lease he located his land; and where a location is made by a party, he is estopped from denying it. Ridgely's Lessee vs. Ogle & Leonard, 4 Harr. & McHen. 123. Upon Harbaugh's abandonment, the land reverted to the State, and Hughes had no right to interfere [**17]  with the wharf. He was a trespasser upon the property of the state. Act of Assem. April, 1783, ch. 24, sec. 9. The acts of Assembly vesting powers in the Port Wardens to grant permission to erect wharves, contemplated permanent and beneficial improvements. The wharf commenced by Harbaugh and abandoned, was not a permanent or beneficial improvement. It was suffered to go to ruin. His contract, therefore, was void on his abandonment. Until such contract is fully complied with, the land continues in the State.

R. Johnson, for the appellees. The questions which arise upon the title and proof, are,

1. Whether or not the defendants are entitled, under the doctrine of alluvion, to all land added to Gist's Inspection?

2. Whether or not such a title is shown, under the permission given to Harbaugh, to erect a wharf, in the greater part of the land in question, as will prevent the plaintiff from recovering?

1. There can be no extension of the lines of Gist's Inspection farther than they will go by the courses and distances expressed in the grant. But the question of alluvion depends upon that tract of land lying on the river. It seems that a considerable part of Gist's Inspection,  [**18]  at the time of the grant, was covered by water. The claim under that grant, in the absence of the doctrine of alluvion, is for all that part which was so covered by water at the time of grant, but which is now, by the recession of the water, become firm land. The right of a person to alluvion, having land bounding on the sea, has been considered to be a common right. There is no difference whether the tract of land called for the river or not, the right to alluvion is the same. The right is given upon the principle, that he might lose land by the washing of the shore by the river. 2 Blk. Com. 61, 66, 261, 262. 5 Bac. Ab. tit. Prerogative (B) 495. This doctrine is not made to depend upon the grant of the land calling for, and binding on the river; but upon the fact only of the land lying adjoining the river. The point could never arise, if the land called for and to bind on the river,--for in such a case, wherever the river went, the land would go with it. But the right is given to the proprietor of the adjoining land, because his land does not, by its lines, call to bind on and with the water. It is, therefore, only necessary for the defendants to show, that their land did adjoin the [**19]  river, at the time it was granted.

The doctrine of estoppel cannot operate in an action of ejectment as to the locations made of the same land in another action of ejectment, even if between the same parties. Here the plaintiff has not counterlocated the location made by the defendants of Gist's Inspection. The evidence is, that the water run in a particular manner, until it gradually receded to where it now runs from, O to B, to 5 to V, leaving land formed by accretion. This is admitted in the bill of exceptions, and does away the effect of Harbaugh's wharfing out a part of it. If this gradual increase of the land was by the recession of the water, in conjunction with the acts of Harbaugh, still the doctrine of alluvion will attach. Adams vs. Frothingham, 3 Mass. Rep. 352. For a part of the land at least, there has been a gradual accretion, independent of the acts of Harbaugh.

2. The defendants are entitled, under the permit to Harbaugh, to build a wharf. But it has been said that Hughes was a trespasser. Suppose he was, it was nothing to the plaintiff. It was only necessary for the defendants to show that the State had parted with its title to the land. The Port Wardens [**20]  had no authority to give permission to Harbaugh, to wharf out in front of Hughes's land, so as to deprive him of his water right. The wharfing privilege was to be given to the owner of the land, in front of which the wharf was to be made. Act of 1745, ch. 9, sec. 10. The lease from Hughes to Harbaugh was only of a temporary interest. When is the improvement perfected so as to vest the property in the improver? There is nothing to show but that the wharf erected by Harbaugh, did answer all the purposes for which it was intended. It will not be said, that if the wharf had been completed, but is now in a ruinous state, it would divest the title out of the improver. There was an improvement made, even if the wharf was not completed. If the permission granted, was not complied with, it was the duty of the Port Wardens to have it destroyed, as a nuisance. Act of April, 1783, ch. 24. The presumption is, that the permit to build the wharf, was complied with. When Hughes took possession after Harbaugh's abandonment, the right became his. He was not bound to complete the wharf. All Harbaugh's rights were vested in Hughes. After the act of April, 1783, ch. 24, this kind of property and right [**21]  were placed under the control of the Port Wardens, and the land office had no right to grant a warrant to affect any land so placed. All the right of the State, if it had any, was vested in the Port Wardens; and by the act of 1796, ch. 68, is vested in the corporation of Baltimore. Could not Harbaugh transfer his right to another; and could he not abandon in favour of Hughes? It will be presumed that he had regularly abandoned in favour of Hughes.

Mitchell, on the same side. When Gist's Inspection was surveyed and granted, as all the deeds offered in evidence recognize, the tract of land ran with the edge of the river. The common law doctrine of alluvion is the civil law of alluvion. Harg. L. T. 28. Abbot of Ramsay's case, 3 Dyer, 326. b. The State never had the right of alluvion. It is an increment of rivers subsequent to possession being taken by the sovereign. It cannot be appropriated or granted to any person, being imperceptible. If it was perceptible it might be granted, but being imperceptible it accrues to the adjacent soil. If an island appears in the sea, the sovereign may take possession of it. The King vs. Lord Yarborough, 10 Serg. & Lowb. 19. At what time did the [**22]  right of the State, if any, accrue to this alluvion? The right of the public to navigable rivers, is no longer than any such river is covered by water. When it is no longer a public river, but has become land, it belongs to the owner of the adjacent soil, whether his grant for his land called to bind on the river or not. This case is not similar to Brown vs. Kennedy. This is a case of dereliction, not a filling up. Harg. L. T. 28. Abbot of Ramsay's case, 3 Dyer, 326. 2 Blk. Com. 261. 5 Bac. Ab. tit. Prerogative (B. 3,) 498. The Batture case, 5 Hall's L. J. arguments of Jefferson and Livingstone, 26, 27, 60, 63, 42, 46, 146, 147, 148, 149, 160, &c. Smart vs. Dundee, 8 Bro. Parl. Cas. 119. Poth. 19, 20. Vattel, B. 1 ch. 22, sec. 5, page 121. The right to the adjoining water passes as an appurtenance in all grants of land. This gave a right to the holders of adjoining lands to build wharves in Baltimore, if it did not obstrust the navigation of the river. The acts of 1745 and 1783, took away all the State's right and vested it in the Port Wardens; and they were the judges whether or not Harbaugh had complied with the permission granted to him to build a wharf. If Hughes was the riparian [**23]  proprietor both before and after his lease to Harbaugh, the State had no right to divest him of such right. After Harbaugh abandoned, the rights of Hughes were reinstated, and he was clothed with all Harbaugh's rights, who could not acquire a fee simple right against Hughes. See 2 Hall's L. J. 434, and 4 Hall's L. J. 517.

The verdict in the former ejectment did not affect the question as to the land now in dispute. Here the defendants, and those under whom they claim, have had long and uninterrupted possession; and the presumption is that the water belonged to them. Bealey vs. Shaw, 6 East. 213.

Learned, in reply. The question is whether or not land formed by alluvion, vests in the proprietor of the adjoining land?

1. As to the effect of the grant of Gist's Inspection--it incorporates the terms and conditions under which the grantee held the land. Calls were excluded. Kilty's Land Hold. Ass. 228, 229. The condition of the grant was, that there should be no calls, but that each line was to run course and distance from the beginning. The grantee was then bound by course and distance location, and could not bind on, and run with the river. Lands here are not held as they [**24]  are in England. There it is a prerogative right, but here all lands are passed by grant and held in fee. The whole province was originally granted to the Lord Proprietary. He granted to individuals, and what he did not grant, remained in him, and now in the State. Lands are not held here by fiction of law, but they are held under grants, which are differently construed from those in England. Our courts have said, that course and distance are to be the location, where there are no calls; but if there are calls, they are to be gratified, and course and distance not to be regarded. Is this so in England? Where the adjacent proprietor of the soil, by his grant, calls for and binds on the river, then he is entitled to all alluvion; but if his grant has no such call, he has no right to alluvion. Vattel, B. 1. ch. 22, page 121. 2 Blk. Com. 261, 262. Brown vs. Kennedy, 5 Harr. & Johns. 195.

2. Alluvion must be imperceptible, &c. and if not, the land formed otherwise belongs to the sovereign power, and does not vest in the riparian proprietor.

3. There was not such an improvement made by Harbaugh as the act of Assembly contemplated; and this court from the evidence, is competent to [**25]  judge of that fact, and apply the law to it. The evidence is that the wharf was not completed--only part of it was built, and then it was abandoned. There is no evidence that it was ever used as a wharf for any purpose.  

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

OPINIONBY:
STEPHEN 

OPINION:

 [*263]  STEPHEN, J. delivered the opinion of the court.
This action was instituted in Baltimore County Court, to recover a parcel of land called Augustus's Discovery Resurveyed, which was patented to John James Giraud, as vacant land, and whether it was vacant or not at the time he caused it to be resurveyed, is the question now to be determined, and in order to ascertain this question it becomes necessary to decide what was the true location of Gist's Inspection, patented to Richard Gist, on the 9th of July, in the year 1732, that is, not how it was originally located, but what was its true position at the time of Augustus's Discovery, and the resurvey upon Augustus's Discovery were taken up. It is admitted that Gist's Inspection, when it was surveyed and patented, ran into the water or basin of Baltimore; since that time the water has [**26]  gradually receded, and the land formed by the recession of the water, is the land upon which Giraud made his survey of Augustus's Discovery in the year 1812, and his resurvey, in the year 1813. In the course of the trial, the parties made the following admission: "It is admitted that the several water lines or shores located by either party in this cause, shew and designate where the tide water of the Patapsco river or basin of Baltimore, flowed at different periods of time, receding gradually eastwardly, to where the same now are shewn by the most eastward location thereof, in blue shaded lines, and that the lines of Gist's Inspection, when the same was granted, including part of the sixth line thereof from the end of said line, ran into the water Patapsco or basin of Baltimore Town, to the end of the tenth line thereof, and that the above lines are so located, except a small part of the south end of the tenth line." It has been contended that as the lines of Gist's Inspection were originally run, course and distance, when the survey of it was made, and had no call to the water, it must be confined to its course and distance, and cannot be extended [**27]  beyond 

 [*264]  them. This position is true as a general principle in exposition of grants; but the question is not here what was the true original location of Gist's Inspection at the time it was surveyed, but whether under the circumstances of this case, the defendants are entitled to the adjacent land formed by the waters having gradually receded in an eastern direction. Christopher Hughes, the father of the defendants, held a part of Gist's Inspection, and the deed under which he claimed title to it, describes it as running into the water; that deed bears date the 6th of June, 1782. The principle seems to be well settled, that where a tract of land lies adjacent or contiguous to a navigable river or water, any increase of soil formed by the waters gradually or imperceptibly receding, or any gain by alluvion in the same manner, shall, as a compensation for what it may lose in other respects, belong to the proprietor of the adjacent or contiguous land. For this principle, see 2 Blk. Com. page 261, where he says, "as to land gained from the sea, either by alluvion by the washing up of sand and earth, so as in time, to make terra firma, or by dereliction, as when [**28]  the sea shrinks back below the usual water mark; in these cases the law is held to be, that if this gain be by little and little, by small and imperceptible degrees, it shall go to the owner of the land adjoining." It is then not upon the principle that the land calls for the water, but because it adjoins the water, that the owner acquires a title to the soil so formed, for, continues he, de minimis non curat lex; and besides these owners being often losers by the breaking in of the sea, or at charges to keep it out, this possible gain is therefore, a reciprocal consideration for such possible charge or loss; here we have in plain and strong language, the reason of the rule, which places the acquisition of the additional soil by the owner of the adjoining land, upon the ground, that he might be a loser by the breaking in of the sea, or at an expense to keep it out. And to bring the case within the operation of the rule, it is only necessary that the land should be adjoining the water. To the same effect is the law laid down in the 5th vol. of Bacon's Abridgement, page 494, title prerogative; the principle is there stated to be, that 

 [*265]  if the sea leaves any [**29]  shore by a sudden falling off of the water, such derelict lands belong to the king, but if a man's lands lying to the sea, are increased by insensible degrees, they belong to the soil adjoining. Here, too, it appears only to be necessary, that the land should be adjoining to the sea, to entitle its owner to the derelict land formed by the recession of the water. It appears by the proof in the cause, that Harbaugh who obtained from the Port Wardens in Baltimore, a permission to make a wharf, never did complete it according to such permission, but after proceeding in the work for some time, totally abandoned it. This permission he obtained from the Board of Wardens who were authorized to grant it by the provisions of the act of 1783, ch. 24, but in order to vest a title in such wharf, it appears to be necessary that he should have completed it. This appears to be essential by the provisions of the act of 1745, ch. 9, sec. 10, by which it is enacted, that "all improvements, of what kind soever, either wharves, houses or other buildings, that have or shall be made out of the water, or where it usually flows, shall (as an encouragement to such improvers,) be forever [**30]  deemed the right, title, and inheritance of such improvers, their heirs and assigns, forever." Neither Hughes nor Harbaugh therefore, acquired any title to the work done by Harbaugh, in virtue of his permission, but it being expressly admitted by the parties, that the water gradually receded to where it now flows, it is upon the ground of such gradual recession, by which the derelict land was formed, that Hughes and those now representing him claim title to it. The counsel for the appellant having waived the points arising on the first bill of exception, it is not deemed necessary to give any opinion upon it.
JUDGMENT AFFIRMED.  

6 of 44 DOCUMENTS 

ALLENDER, Adm'r. D. B. N. of WYSE, vs. RISTON.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

2 G. & J. 86; 1829 Md. LEXIS 11 

December, 1829, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court.

This was an action of Replevin brought on the 16th of July, 1823, by the now appellant, against the appellee, for certain goods and chattels, and negro slaves. The defendant (the appellee) pleaded non cepit, and property in himself. Issue was joined to the first plea, and general replication and issue to the second plea.

1. At the trial the plaintiff gave in evidence that William Wyse, the plaintiff's testator, departed this life at his residence in Baltimore county, about the year 1814, leaving the following last will and testament: "Baltimore, 12th March, 1814--Having at this perilous moment of my life committed myself to the care of Almighty God, whom I trust will receive my soul, I have only to request my affectionate wife and son John, in case of a deficiency of my estate, to support and educate my children; that my real estate, known by the name of the Deer Park, be disposed of for the maintenance of said children, under the direction of my wife Rachel, and John Wyse."

The will was proved on the 12th of April, 1814, by two of the subscribing witnesses, &c. That after his death, letters of administration, with the will annexed,  [**2]  were duly granted to Rachel Wyse, the widow of the said testator, who took upon herself the execution of said trust. That the said Rachel Wyse, as administratrix aforesaid, returned to the Orphans Court of Baltimore county the following inventory and account. The inventory was dated the 8th of July, 1814, and proved by the administratrix on the 23d of July, 1814, amounting to $ 6735 25. The first account was settled by the administratrix with the Orphans Court on the 29th of June, 1816, in which she charged herself with the amount of the inventory, $ 6735 25. Also for cash received from sundry persons, $ 270, being a total of $ 7,005 25. She craved allowance for sundry payments and disbursements, $ 1292 91, leaving a balance due the estate of $ 5712 34. And died about the month of April, 1823, having returned no other account than that above stated, of her administration aforesaid. The plaintiff further gave in evidence, that at the death of the said William Wyse, he was entitled to, and in possession of, the property in dispute in this cause, and that the same continued in the possession of the said Rachel Wyse until her death. He further gave in evidence, that after the death of [**3]  the said Rachel Wyse, letters of administration de bonis non, on the estate of the said William Wyse, were duly granted to the plaintiff in this cause; and that the plaintiff, as such administrator, returned to the Orphans Court of Baltimore county the following inventory: The inventory, made by certain appraisers in the usual form, was dated the 23d of January, 1824, amounting to $ 2293, and proved by the plaintiff, as administrator aforesaid, on the 3d of February, 1824. On the back of the inventory is thus written: "All the goods and chattels described in the within inventory, are claimed by George Riston, and actions are now depending in Baltimore County Court for the purpose of trying the right of the said George Riston, and also the right of the administrator, to the said goods and chattels." Signed by the administrator de bonis non, &c. The plaintiff further gave in evidence, that no other proceedings in relation to the said estate of the said William Wyse, deceased, except those above stated, have been had in the Orphans Court. He also gave in evidence, that the said William Wyse left a widow, the above named Rachel Wyse, and eight children, namely, John M., William A., a Margaret,  [**4]  Nicholas, Edward, Matilda, and Octavius, all of whom, except the three first, are minors, and yet living. He further gave in evidence, that the property in controversy in this case, was replevied out of the possession of the present defendant, and that such property is the same as that mentioned in the aforegoing inventories.

a The name of Eliza is omitted, probably by mistake.

The defendant then offered in evidence the following instrument of writing, under the attestation and certificate of the clerk of Baltimore County Court thereupon endorsed. This was a deed of mortgage, dated the 16th of May, 1822, between Rachel Wyse, widow of William Wyse, deceased, John M. Wyse, William A. Wyse and Eliza Wyse, stating that the grantors were indebted to the grantee in the sum of $ 2000 upon a promissory note then drawn by the said John M. Wyse, in favor of the said Rachel, or order, and by her and the said William A. and Eliza endorsed, payable 12 months after date; and for the purpose of securing the payment of the said sum of money at the time limited by the said promissory note for the payment thereof, the grantors agreed to execute these presents--whereby was granted, &c.  [**5]  to the said grantee, "his heirs, executors, administrators and assigns, all the right and estate whatsoever, both in law and equity, of the said Rachel Wyse, John M. Wyse, William A. Wyse and Eliza Wyse, and each of them, as well of, in, to and out of, all that lot of ground number 49, situate and lying on Fell's Point in the city of Baltimore," &c. "as in all and singular other the real and personal estate of every description, whereof the said William Wyse died seized or possessed, or to which he was in any manner entitled at the time of his death, wherever the same may be. To have and to hold all and singular the real said and personal estate, property and premises," &c. unto the said George Riston, his heirs, executors, administrators and assigns," &c. The defendant also offered in evidence, that Rachel Wyse, the administratrix of William Wyse, deceased, and one of the said mortgagors, were at the time of the execution and delivery of the said instrument of writing to the defendant, in the actual possession of the property therein mentioned, and that the personal property is the same property mentioned in the declaration in this cause. That the said Rachel Wyse, upon the death [**6]  of her husband, had taken possession of the said property as administratrix; and that she and the other mortgagors had lived upon the farm from the time of the death aforesaid, and used the said personal property as their own, until the time of the execution of the said instrument of writing, and afterwards. That they had no other personal property. The defendant then prayed the opinion of the Court, and its direction to the jury, that by the said instrument of writing, such an interest in and to the property therein mentioned, passed to the defendant, as prevents the plaintiff, as administrator de bonis non of William Wyse, from maintaining the present action, and that he is not entitled to recover. Of which opinion the Court (HANSON, A. J.) was, and instructed the jury as prayed by the defendant. The plaintiff excepted.

2. The plaintiff then asked the opinion of the Court, and their direction to the jury, upon all the evidence stated in the plaintiff's next preceding bill of exceptions. 1st. That the said deed of mortgage, so given in evidence by the defendant in such prior bill of exceptions, operated to pass no more of the personal estate of William Wyse, deceased, than the [**7]  interest and share to which the parties, mortgagors to such mortgage, were respectively entitled, as the widow and distributees of William Wyse, deceased, after the payment of the debts of the said deceased. 2d. That the said deed conveys no interest in the said estate to which the said Rachel Wyse, one of the parties thereto, was entitled as administratrix. 3d. That the said Rachel Wyse had no legal authority to execute the said deed, as administratrix, so as to transfer any interest she had in the said estate as administratrix. 4th. That as she does not describe herself in the said deed as administratrix of the said William Wyse, the true construction of the deed is, that she did not intend thereby to transfer her interest in the said estate, as administratrix. 5th. That inasmuch as the consideration stated in the said deed, is to secure a debt due by the said Rachel Wyse, in her individual character, as the endorser of the note in the said deed mentioned, that the same was not such a fair and bona fide consideration as would render the said deed legal and valid to pass any other interest in the personal estate of the said William Wyse, than the interest which she and the other mortgagors [**8]  had in the said estate as the distributees thereof. But the Court refused to give each and every of the said opinions to the jury. The plaintiff excepted.

3. The plaintiff having offered in evidence the letters of administration granted on the estate of William Wyse, deceased, to Rachel Wyse, on the 12th of April, 1814, and the inventory returned by her to the Orphans Court of Baltimore county, in which county the said William Wyse died, of the personal estate of which the said deceased died possessed, dated the 23d of July, 1814, and having proved that the said Rachel Wyse departed this life in the year 1821 or 1822, and having offered in evidence the letters of administration de bonis non on the estate of the said William Wyse, granted to the plaintiff the 16th of July, 1823, then offered in evidence the paper purporting to be an authenticated copy of the inventory of the estate of William Wyse, returned by the plaintiff, as administrator de bonis non aforesaid, for the purpose of proving that the articles of property contained in the said last inventory were the property in possession of the said Rachel Wyse, as administratrix aforesaid, at the time of her death unadministered,  [**9]  (being the same as inserted in the first bill of exceptions.) The defendant objected to this evidence, 1st. Because the said inventory was not made or exhibited until after the commencement of this suit. 2d. That it afforded no evidence that the property therein mentioned was the same for which this suit was brought. 3d. That the said inventory having been made by the plaintiff, it was, therefore, incompetent evidence. 4th. That the said inventory does not appear to have been judicially sanctioned by the Orphans Court, otherwise than by admitting the same to be recorded; nor to have been otherwise verified in the Orphans Court, except by the bare oath of the plaintiff himself. 5th. That the said paper so offered, does not, in any respect, conduce as proof to the object for which it is offered, nor to prove the issue in this case. The Court were of opinion that the said paper, so offered in evidence, was competent and legal proof to show the fact that such an inventory was made and given by the plaintiff in the Orphans Court; but not to prove that the property therein mentioned belonged to the plaintiff or his intestate; and refused to let the said inventory be read in evidence for [**10]  the purpose for which it was offered by the plaintiff. The plaintiff excepted.

4. The plaintiff, to prove the property or some part thereof, in the declaration mentioned, to have been in the possession of the defendant at the time of the replevin, offered in evidence by P. Codd, a competent witness, that the property in the declaration mentioned was on the farm occupied by William Wyse in his life time, and John M. Wyse, his son, at the time of the service of the writ of replevin in this case. That the same property had not been taken possession of, or removed by the defendant, except a small portion of the furniture which had been put in the defendant's wagon; but when so put in the wagon, the defendant was not on the premises. And the witness states that he does not remember whether the schedule and receipt, hereinafter referred to, were signed by the defendant, on the farm, or in the city of Baltimore; but when the witness went on the premises, Mr. Fishach, the agent of the defendant, was there, and loading the wagons by the defendant's direction. The negroes were not in the wagon. The witness saw no opposition at the time made by any person to the defendant's taking the property.  [**11]  The witness stated that he did not recollect any thing of the property, more than he finds mentioned in the schedule in his handwriting. He saw the property on the place, and in the hands of John M. Wyse. Upon explaining this part of his testimony, the witness states that he did not mean thereby to say the property not in the wagon was in the actual possession of John M. Wyse, or that any part of it was so: that he did not know the property to have been William Wyse's. The plaintiff then offered in evidence the following paper: "A schedule of the goods and chattels of John M. Wyse, Eliza Wyse and William A. Wyse, seized and taken at the suit of George Riston, by virtue of a writ of replevin issued out of Baltimore County Court, and to the sheriff thereof directed, and appraised by us, the subscribers, after being duly summoned and sworn for that purpose. Given under our hands and seals, this     day of July, 1823. One negro girl named Nan, aged 15, $ 230," &c. The whole amounting to $ 1905 37 1/2, and signed by the appraisers. Also a receipt dated the 15th of July, 1823, signed by Riston, stating that he had received from the sheriff of Baltimore county "the foregoing list of goods,  [**12]  as per schedule." Which paper, it was admitted, was one of the papers of record in this Court in the cause in which George Riston was plaintiff, and John M. Wyse, Eliza Wyse and William A. Wyse, were defendants, and was the schedule prepared and returned in that cause by the sheriff of Baltimore county. To the reading of which paper to the jury, the defendant objected as incompetent evidence. 1st. Because the said paper is a part of the proceedings in another cause; and that it is not competent for the plaintiff to offer such evidence without producing the whole of the proceedings in the said cause. 2d. Because the said proceedings are in a cause between other and different parties. 3d. Because the said evidence is not relative to the issue on the part of the plaintiff in this cause. But the Court overruled the objection, and permitted the said paper to be read to the jury. The defendant excepted. Verdict and judgment for the defendant, and the plaintiff appealed to the Court of Appeals.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

W. died intestate in 1814, as to his personal estate. Administration was granted to his widow, who returned an inventory, and in 1816 settled an account with the Orphans Court, in which she obtained credit for various payments. She, with several, but not all, of the deceased's children, in 1822 united in a mortgage to the defendant, of some of the personal property which the intestate left, to secure the payment of a debt, for which the mortgagors were responsible to the defendant. The mortgage did not profess to be executed by the widow, in her representative character; and it did not appear that any of the intestate's debts remained unpaid. The widow died, and in 1823 the plaintiff was appointed administrator d. b. n. of W, and brought replevin against the defendant, who claimed the goods under his mortgage. HELD, That in as much as strong circumstances existed in the case, to induce the presumption that the intestate's debts had been all satisfied, it was fair to infer that the administratrix had made distribution of the remaining assets, and acted in her character of distributee, in making the mortgage; that therefore the plaintiff was not entitled to recover.

An inventory made and returned by an administrator to the Orphans Court, after he has commenced an action for the recovery of the property included therein, is not competent evidence for him at the trial of the cause; for he might become personally liable for the costs of the suit.

The sheriff's schedule of goods returned, as taken and delivered in an action of replevin at the suit of R, may be read in evidence by the plaintiff, (who was one of the defendants in the replevin,) in an action against R, for the purpose of proving that R was in possession of the same goods, on the day after they were first taken.  

COUNSEL:
J. Scott, for the appellant, contended,

1. That the property mentioned in the proceedings in this cause, passed to, and vested in, Joseph Allender, the appellant, as [**13]  administrator de bonis non of William Wyse. 2. That the deed of mortgage, given in evidence by the defendant, operated to pass no more of the personal estate of the said William Wyse, deceased, than the interest or share to which the parties, mortgagors, were respectively entitled, as the widow and distributees of the said testator, after the payment of his debts. 3. That the said deed conveyed no interest in said estate, to which Rachel Wyse was entitled, as administratrix of the said William Wyse. 4. That the said Rachel Wyse had no legal authority, as administratrix, to execute the said deed, and transfer any interest which she held as administratrix in the said personal estate. 5. That as she does not describe herself as administratrix, the true construction of the said deed is, that she did not intend by the same to transfer her interest in the same, as administratrix. 6. That inasmuch as the consideration stated in the deed is to secure a debt due by the said Rachel Wyse, in her individual character, as the endorser of the note mentioned in the said deed, that the same was not such a fair and bona fide consideration, as would render the same deed legal and valid, to pass any [**14]  other interest in the personal estate of the said testator, than the interest which the said Rachel Wyse, and the other mortgagors had in the said personal estate, as the distributees thereof. 7. That the inventory returned by the plaintiff to the Orphans Court, was competent evidence to go to the jury, for the purposes for which it was offered. He referred in his argument to Haslett's Adm'r. d. b. n. vs. Glenn, 7 Harr. and Johns. 17, and Hill vs. Simpson, 7 Ves. 168.

Glenn, for the appellee, submitted on notes. William Wyse died in March, 1814, intestate as to his personal estate. Letters of administration were forthwith granted to his widow, who undertook the administration, and by her accounts returned, it appears that she proceeded to pay off the debts of the deceased. And it nowhere appears that the administratrix left a single debt of the deceased unpaid at her death, unless the claim of Riston were such a debt. And such indeed was the fact, not a single debt remaining unsatisfied, for which the estate was liable. The widow then, became entitled to one-third of all the personal property, in her own right, and the three other mortgagors to their parts, as children of the [**15]  deceased. She being the administratrix, and widow, and they the children, unite in conveying all the property to which they are entitled, to Riston, to secure a note, drawn and endorsed by the whole four, and he holds the property thus conveyed; and now the administrator, de bonis non, without shewing that there is a single outstanding debt due by the deceased, claims and replevies property, thus conveyed by the former administrator.

We are here in a Court of Law, and not in a Court of Equity, endeavoring to fix a trust on the purchaser, as was the case of Hill vs. Simpson, 7 Vesey, jr., cited by Mr. Scott, and we are to be governed by the rules of law.

Now what is the rule applicable to this case? It is this. An executor or administrator can sell or convey all the personal property of the deceased, whenever and wherever he pleases; and although it be a devastavit in him, yet this does not affect the sale. He may even give the property away. See Went. off. of Executors, 295, 297. 1 At. Reports, 463. St. Andrew's Church vs. Tompkins, 7 Johns. Ch. Reports, 16. Noy, 106. Cro. Jac. 318. Coventry's Powell on Mortgages, 101. Toller, 134. Lord Hardwicke says, in 1 Atk. 463: at law [**16]  the executor has the power to alien or dispose of the assets of the testator, and no creditor at law can follow them. And Chancellor Kent, in 7 Johns. Ch. Rep. 16, states distinctly, that an executor has the right to transfer the assets of the deceased, to indemnify one of his own securities, not for him, as administrator, but in a different right.

In some cases in Chancery, the assets may be followed in the hands of the vendee, but they are extremely rare, and they all proceed upon the ground of implied trusts, with which this Court, as a Court of Law, has nothing to do. And this is the case in 7 Vesey, and which of course has no application to this case.

The case in 7 Harr. and Johns. 17, only decides that an executor does not, by paying the debts of the testator, become entitled to the property of the deceased. It does not at all profess to determine, that an executor cannot convey, by deed or otherwise, the assets of a testator; but this case leaves the law, as to the executor's power to sell, just where it found it. Suppose, however, I should be wrong on this point, still, as it appears, that when this conveyance was executed, that testator had been dead eight years,  [**17]  and administration been granted for the same length of time, and it nowhere appears that there is a single outstanding debt; it follows that the widow was actually the owner of one-third of all the personal chattels, and the other grantors, Eliza, William and John, entitled to three-eighths of the residue. By Mrs. Wyse's account, it appears that on the payment of the debts, there was yet property to the amount of $ 5712 34; one-third of this is $ 1904 11; three-eighths of $ 3808 23 is $ 1428 09, making a total of $ 3332 20. Now it appears that the whole personal property in Riston's hands, only amounted to $ 2293, more than $ 1000 less than the grantors were entitled to. Will this Court then deprive the vendee of property thus conveyed, evidently less in value than it manifestly appears they were entitled to, from the estate of the deceased? Taking then Mrs. Wyse as administratrix of the deceased, or considering her and her three children as distributees, entitled to a portion of the estate, they were clearly entitled to convey the property in question to Riston; and if the children or creditors of William Wyse, deceased, have any right to this property, it can only be in equity, where [**18]  they can resort for redress.  

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

OPINIONBY:
STEPHEN 

OPINION:

 [*96]  STEPHEN, J. delivered the opinion of the Court.
In this case the plaintiff, as administrator de bonis non of William Wyse, instituted an action of replevin against the defendant, to recover certain property, out of his possession, which he claimed in his representative character, as part of the assets of said Wyse. In 1814, William Wyse died intestate as to his personal estate; letters of administration were granted to his widow, who returned an inventory, and settled an account with the Orphans Court of Baltimore county, in which she craved an allowance for sundry payments and disbursements, amounting to the sum of $ 1292 91. This account was settled on the 29th of June, 1816. The deed of mortgage under which the defendant claims 

 [*97]  title to the property, was dated on the 16th of May, 1822, executed by the widow and administratrix, and three of the representatives. Nearly six years had elapsed between the account settled with the Orphans Court, and the execution of the deed of mortgage. The question principally [**19]  argued in this case, was, as to the power of an executor or administrator, to dispose of the assets of his testator or intestate, in satisfaction of his own debts. The mortgage was given as collateral security, for the payment of a note of hand drawn and endorsed by the mortgagors, payable to the defendant. According to the authorities, it seems that at law, an executor or administrator may transfer the assets of the deceased, in satisfaction of his own debts. Toller on Executors, 256, 257, says, he has power to sell, or as it has been held, to mortgage terms of years or assign mortgaged terms, and to dispose of any of the effects; although as it seems specifically given by the will, and even in satisfaction of his own private debt. Nor when he has aliened the assets, can a creditor follow them at law; for the demand of a creditor is only a personal demand against the executor, in respect of the assets come to his hands, but no lien on the assets. Equity will, indeed, follow assets on voluntary alienations, by collusion with the executor; but if the alienation or pledge be for a valuable consideration, unless fraud be proved, neither law nor equity will defeat it: for a purchaser [**20]  from an executor has no means of knowing the debts of the testator; and if a Court of Equity, on the subsequent appearance of debts, would control such purchaser, all dealings with executors, would be dangerous; and even in equity, Chancellor Kent, in referring to the case of Nugent vs. Gifford, 1 Atk. 463, in 7 Johns. Ch. 17, says an assignment of a mortgage term (and it was a mortgage to trustees, in trust for the testator) was made by the executor to the plaintiff, in satisfaction of a debt due from the executor to the plaintiff. Yet Lord Hardwicke held the assignment to be valid, and that the creditors of the testator 

 [*98]  were not entitled to follow the property. A purchaser from an executor has no power of knowing the debts of the testator; and if he did know it was testamentary assets, it would not affect the validity of the assignment, as it was an alienation for a valuable consideration; and no fraud or collusion with the executor to misapply the assets, appeared. The doctrine in that case has been repeatedly advanced; and it appears to be an established principle, both at law, and in equity, that a bare act of sale of the assets [**21]  by the executor, is a sufficient indemnity to the purchaser, if there be no collusion. In the case of Whale vs. Sir Ch. Booth, Lord Mansfield observed, that if at the time of the alienation, the purchaser knew they were assets, this was no evidence of fraud; for all the testator's debts may have been already satisfied: or, if he knew that the debts were not already satisfied, must he look to the application of the money? no one would buy on those terms. There is one exception, indeed, where a contrivance appears between a purchaser and an executor, to make a devastavit. In 7. Johns. Chan. Rep. 157, Chancellor Kent says, "subsequent decisions, have, in some degree, restrained the extent of the doctrine laid down by Lord Hardwicke, and Lord Mansfield. In Bonney vs. Ridgard, 1 Cox 144, Lord Kenyon, the Master of the Rolls, admitted, that in general the purchaser from the executors of the testator's assets was not bound to see to the application of the money; but, that if upon the face of the assignment of the property, it appeared to have been made in satisfaction of a private debt of the executor, the sale was fraudulent against the persons interested,  [**22]  under the will, and equity would relieve. It would be a case of implied fraud." So again in Scott vs. Tyler, Dickens 712, Lord Thurlow held, that where an executrix pledged bonds, specifically, as a security for her own debt, contracted after the testator's death, the pawnee must deliver up the bond, for the benefit of the specific legatee. He admitted, that in general the purchaser of the assets had no concern with the application of the price, and that the rule applied equally 

 [*99]  to mortgages, bonds and leases. But if one concerted with the executor to obtain the effects at a nominal price, or at a fraudulent under value, or in extinguishing the private debt of the executor, or in any other manner contrary to the duty of the office of executor, the purchaser or pawnee will be liable. In Hill vs. Simpson, 7 Ves. Jr. 152, Sir William Grant made a similar decree. He said, the assets known to be such, ought not to be applied in any case, for the discharge of the executor's debt, unless the creditor taking the assets can be first satisfied of his right so to apply them. Lord Eldon has also declared, "that there could not be a stronger case [**23]  of a devastavit than an executor aliening the property of the testator, to pay his own debts, the alienee knowing at the time that debts of the testator were due. In the case now before this Court, it nowhere appears that there were any debts remaining due and unpaid at the time of the mortgage; or if they were, that the defendant knew of them, and to use the language of Mr. Justice Ashhurst, to be found in 4 Term. R. 645: "if the creditors will lie by and not assert their rights, it is reasonable for a third person to suppose that all the debts are satisfied." But in this case, it does not appear that the administratrix acted in her representative character at the time she executed the deed of mortgage: she does not, in terms, assume that character, and has associated herself in making the disposition of the property, with three of the children and representatives of her intestate: from this fact, connected with the strong circumstances existing in the case to induce a presumption that the debts were all satisfied, it is fair to infer that she had made distribution of the remaining assets, and acted in her character of distributee. And upon this view of the case,  [**24]  it follows that the appellant, the administrator de bonis non, is not entitled to recover.
As to the question raised in the cause, relative to the admissibility of the plaintiff's own inventory to support his case, made after the institution of the action, we think the 

 [*100]  same was not competent evidence, because he might become personally liable for the costs of suit.
JUDGMENT AFFIRMED.  

7 of 44 DOCUMENTS 

J. W. & R. H. OSGOOD vs. LEWIS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

2 H. & G. 495; 1829 Md. LEXIS 44 

June, 1827, Argued 

June, 1829, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court. This was an action on the case brought on the 27th of March 1822, by the appellants, (the plaintiffs in that court,) against the appellee, (the defendant in the said court.) The declaration contained four counts. The first count stated, "that whereas the plaintiffs, copartners, trading under the firm of Osgood and Company, heretofore, to wit, on the 1st of December 1821, at Baltimore county aforesaid, at the special instance and request of the defendant, bargained with the defendant to buy of him a quantity of oil; that is to say, 115 casks, containing 9,547 3/4 gallons, at and for a certain price or sum of money, to wit, the sum of $ 10,780 93; and the defendant, by, then and there, falsely and fraudulently representing the said oil to be of the quality of the best winter pressed spermaceti oil, then and there sold and delivered the said oil to the plaintiffs at and for the sum of money aforesaid, which was then and there paid by the plaintiffs to the defendant, for the same; whereas in truth and in fact the said oil was not the best winter pressed spermaceti oil, as represented by the defendant, but of a greatly inferior quality, which he, the [**2]  defendant, well knew at the time of the sale and delivery thereof as aforesaid; and the plaintiffs in fact say, that the defendant, by means of the premises, on the day and year aforesaid, at the county aforesaid, falsely and fraudulently deceived them, the plaintiffs, on the sale of the said oil, and thereby the said oil became of no use or value to the plaintiffs, to wit, at Baltimore county aforesaid."

Second count. "And whereas also, the plaintiffs afterwards, to wit, on the day and year last aforesaid, at Baltimore county aforesaid, bargained with the defendant, to buy of him a certain other quantity of oil, to wit, 115 casks, containing 9,547 3/4 gallons; and the defendant by, then and there, falsely warranting the said last mentioned oil to be best winter pressed spermaceti oil, falsely and fraudulently induced the plaintiffs then and there to buy of him, the defendant, the said last mentioned oil, for a certain other large price or sum of money, to wit, the sum of $ 10,780 93 of like current money; whereas, in truth and in fact, the said last mentioned oil, at the time of the said last mentioned warranty and sale, was not the best winter pressed spermaceti oil, but was [**3]  of a greatly inferior quality, and of no use or value to the plaintiffs, to wit, at the county aforesaid."

Third count. "And whereas also, the plaintiffs afterwards, to wit, on the day and year last aforesaid, at Baltimore county aforesaid, bargained with the defendant, to buy of him a certain other quantity of oil, to wit, 115 casks, containing 9,547 3/4 gallons, and the defendant then and there falsely representing the said last mentioned oil to be winter pressed spermaceti oil, falsely and fraudulently induced the plaintiffs then and there to buy of him, the defendant, the said last mentioned oil, for a certain other large sum of money, to wit, the sum of $ 10,780 93, of like current money, then and there paid by the plaintiffs to the defendant, for the same; whereas, in truth and in fact, the said last mentioned oil, at the time of the said last mentioned representation and sale, was not winter pressed spermaceti oil, but of a greatly inferior quality, which he, the defendant, well knew at the time of the last mentioned representation and sale; and the plaintiffs in fact say, that the defendant, by means of the premises, on the day and year aforesaid, at the county aforesaid,  [**4]  falsely and fraudulently deceived them, the plaintiffs, on the sale of the said last mentioned oil, and thereby the said last mentioned oil became of no use or value to the plaintiffs, to wit, at Baltimore county aforesaid."

Fourth count. "And whereas also, the plaintiffs afterwards, to wit, on the day and year last aforesaid, at the county aforesaid, bargained with the defendant to buy of him a certain other quantity of oil, to wit, 115 casks, containing 9,547 3/4 gallons; and the defendant by, then and there, falsely warranting the said last mentioned oil to be winter pressed spermaceti oil, falsely and fraudulently induced the plaintiffs then and there to buy of him, the defendant, the said last mentioned oil, for a certain other large sum of money, to wit, the sum of $ 10,780 93, of like current money; whereas, in truth and in fact, the said last mentioned oil, at the time of the said last mentioned warranty and sale, was not winter pressed spermaceti oil, but was of a greatly inferior quality, and of no use or value to the plaintiffs, to wit, at Baltimore county aforesaid. And so the plaintiffs say, that the defendant has falsely and fraudulently deceived them, the plaintiffs,  [**5]  on the sale of the said last mentioned oil as aforesaid, to wit, at the county aforesaid, to the damage of the plaintiffs in the sum of," &c. The defendant pleaded not guilty, and issue was joined.

1. At the trial the plaintiffs offered in evidence that they are merchants, residing in the city of Baltimore, and trading under the firm of Osgood and Co. and that they have been so residing in the said city of Baltimore, and carrying on trade and commerce, under the aforesaid name and style of Osgood and Co. from the year 1820, continually up to this time; and that Osgood and Co. mentioned in the bill of parcels hereinafter inserted, as the purchasers of the oil mentioned in the said bills of parcels from the defendant in this case, and the plaintiffs in this case, are the same persons; and that the plaintiffs purchased the said oil from the defendant, and received the same, and the said bill of parcels, under the name and style of Messrs. Osgood and Co. And further proved that the defendant sold to the plaintiffs in this cause a quantity of oil, as stated in the following bill of parcels:

"Baltimore, November 21st, 1821.

Messrs. Osgood and Co. Bo't. of Peter Lewis,

 [**6]  

________________________________________________________________________________

  115 casks of Winter Prest Sperm Oil.	Gages 29," &c.	
  "Gallons	9,547 1/2	
	1,600   gs. a 115 cts.	$ 1,840   	
	
	7,947 1/2 a 112 1/2 cts.	8,944 93	
________________________________________________________________________________

Received payment in full, by sundries, up to the 5th December 1821.     Peter Lewis."

Which said oil was delivered between the twenty-first day of November, and the fifth day of December, inclusive, in the year 1821, on which latter day the defendant signed and delivered the bill of parcels, and receipt thereunder written, to the plaintiffs; and which were offered and read in evidence, the same having been proved to be in the handwriting of the defendant. That a part of said oil was immediately, upon the landing thereof from the defendant's vessel on the wharf, and after the delivery thereof to the plaintiffs, sold by them to different individuals in the city of Baltimore, and immediately taken from the wharf by such purchasers. That part thereof, to wit, about twenty barrels, were stored in the second floor of plaintiffs' warehouse in said city, a part on the first floor of that and the adjoining warehouse, a part in a brick stable belonging to the plaintiffs, situated in said city, and [**7]  part thereof was sent by packet from the wharf, and before it was stored, consigned by the plaintiffs to a house in Alexandria. Part of the oil was sent from the wharf before being stored, to Gregg and Co. merchants, carrying on business in Franklin-street, in said city, and received and deposited by them in their cellar, to be by them retailed or sold for the plaintiffs. The plaintiffs further offered evidence that the oil, so sold and delivered to them by the defendant, at the time of said sale and delivery, was not winter pressed oil; and that the oil so sold and delivered by the plaintiffs to such persons, and by them taken immediately from the wharf, was carried by them to their respective houses and stores, and there deposited in suitable and judicious places, and carefully kept by them; that the said oil proved to be oil of inferior quality, and not winter pressed oil. A large part of the oil sold to the plaintiffs, and by them stored, as well as the oil sent to Alexandria, proved to be of the like bad character and quality, and that a great part thereof was summer oil and of inferior quality; that the same congealed, and became unfit for use; that part of the oil shipped by [**8]  them to Alexandria was returned by the consignee as not being winter pressed, and as being unfit for use; that persons in the habit of purchasing oil, refused to purchase of the plaintiffs, in consequence of which the principal part of the said oil remained unsold, and on the plaintiffs' hands. That upon discovering that the said oil was not winter pressed, but summer oil, and of inferior kind, the plaintiffs gave notice to the defendant, by the following letter, that the said oil was not winter pressed, and of the kind represented in the bill of parcels, and required the defendant to take the same back. "Baltimore, 22d Dec. 1821. Capt. Peter Lewis. Dr. Sir,--We have sold several casks of the oil bo't. of you, and warranted by you to us of the best kind winter press'd. sperm oil, the purchasers have complained of the quality, and pronounce it very bad. Their opinion has prevented our making sales, and will probably be a great injury to us--we shall hold you accountable for all damages for loss sustained by us in consequence of the bad reputation the oil has acquired, and from its bad quality--if the d'ft. for the balance of the acc. is not negotiable, you will not--

(Signed)     [**9]  Osgood and Co."

That the defendant admitted that he had sold the oil, as the best winter pressed oil, and that the said oil was not what he sold it for, (to which evidence the defendant objected, so far as it contradicted the bill of parcels,) and the plaintiffs ought to be made whole, but did not take back the same, or reimburse the plaintiffs. That a great part of said oil was congealed, and some of it as thick as lard or turpentine. That it so remained congealed through the month of March, a part until April, and a part of it remained congealed until the month of July 1822. The plaintiffs further offered evidence that winter pressed oil, is that oil which is pressed in cold and freezing weather, in the winter season, and that it will not congeal in ordinary winters in the climate of the city of Baltimore, and although it will congeal, when exposed in an open place, to a great degree of cold, yet it will return to its original limpid state upon a change of the weather, and its becoming more moderate. The plaintiffs further offered evidence that oil which congealed entirely through when the thermometer was at 20 degrees, if kept in the same warehouse would resume its limpid state [**10]  when the thermometer rose to 40, in the opinion of the witness, in ten days, and if it congealed at zero entirely through, upon the thermometer rising to forty-six, he believes it would resume its limpid state in ten days. The witness has not seen the experiment, but was brought up at Nantucket; has had a considerable opportunity of obtaining information of the character of oil, and the effect of the weather upon it; that summer oil is the oil prepared during warm weather; that it will congeal in any weather colder than that in which it was made; will not stand an ordinary winter in Baltimore; and is not then fit for use at that season of the year. That winter pressed spermaceti oil, as known and understood in the trade of the city of Baltimore, was spermaceti oil, that will remain limpid, during the ordinary winters, in the climate of the city of Baltimore, when kept in casks in a warehouse, or when kept in casks in a proper place; and that the word sperm, in the said bill of parcels, means the same thing, and is an abridgment of the word spermaceti; that the price, at the time of the sale herein before mentioned by the defendant to the plaintiffs, was, in the city of Baltimore, sixty-five [**11]  cents per gallon, by the quantity for summer oil, and 120 cents per gallon for winter pressed, when sold by the single cask, and 125 cents for the latter, when sold by the gallon. That the plaintiffs employed, after the 26th of March, but in that month, 1822, a skilful person to take charge of, cooper, and keep in the best situation, such parts of said oil as had not been by them sold off as aforesaid, until some disposition thereof should be made, which was accordingly done, and the same kept in judicious and suitable places. That during the preceding winter, the same person coopered the casks, and kept them tight and in order. That such part of said oil, so placed, was, by direction of the plaintiffs, sold to the highest bidders at public auction in the city of Baltimore, in the month of November, 1822, by one of the licensed auctioneers of the city of Baltimore, after due notice of said sale; that by the sale of said oil, the plaintiffs lost the sum of $ 4,270 09, and which with interest to the 10th November 1825, amounts to the sum of $ 5,236. That before the said sale at auction, the plaintiffs gave the following notice to Henry Payson and Co. merchants in the city of Baltimore.  [**12]  "Baltimore, 25th October, 1822. Messrs. Henry Payson and Co. Gent, -- We hereby give you notice, that we shall on the 13th November next, sell the oil at auction, which was purchased by us last fall of Capt. Peter Lewis, and by him warranted to be of a quality, which it was not, and on account of which, we have instituted a suit against him. You are, therefore, as the agent of the said Lewis, or of his employers, hereby notified of this intended sale, to act as seems to you proper in this case.--

(Signed)     Osgood and Co."

And which notice was received by the said Payson and Co. on the day of its date, and was produced on the trial of this cause by the defendant, upon notice being given to him for that purpose by the plaintiffs. And also proved, that the contents of said notice was communicated to the defendant by the said Payson and Co. by letter, put in the post office in said city, on the same day. The plaintiffs further proved, that they were merchants, carrying on business in the city of Baltimore, but have never been in the habit of purchasing or selling oil, the cargo purchased of the defendant being their first purchase of that article in a large quantity, and [**13]  were not judges of the article. That at the time they purchased the oil, and also, when the same was delivered on the wharf from the vessel, the whole of it was perfectly limpid, in which state, it was proved, that summer, fall, and winter oil, cannot be distinguished from each other by those in the habit of dealing in that article, and best acquainted with it; and offered evidence, that at the time of the sale and delivery of the oil aforesaid, the weather was mild. They further proved, there was no public inspection in the city of Baltimore, of oil, and that the defendant was a captain sailing between Nantucket and the city of Baltimore, and was in the habit of buying and selling oil upon his own account; that he was not in the habit of dealing with the plaintiffs, never having dealt with them except on one occasion, when he purchased a quantity of flour, for which he gave them his own promissory note; and no evidence was offered that the defendant, at the time of the sale of said oil and delivery thereof, did represent to the plaintiffs that he was selling said oil as the agent of other persons, or that he disclosed the names of any person interested therein, if such there were.  [**14]  It was further given in evidence by the plaintiffs, that the defendant represented that he had brought the said oil from Nantucket, where the same was made, and at which place he resides. They further gave in evidence, by Christian Mayer, that all three meteorological tables which were produced in evidence by the defendant, up to the first of January 1822, were kept in the country parts of the city of Baltimore, in an elevated situation, about a mile and a half from Bowley's wharf; that it is high, and exposed to the winds, sheltered to the north-west by a woods, but exposed to the north-east, and no houses are near to the said situation where the thermometers were kept, and that it is ordinarily colder there in winter, and warmer in summer, than in the settled parts of the city, including Bowley's wharf; that in the opinion of the witness such situation does not exceed two degrees of cold in the winter over such settled parts; that the tables referred to were taken from the thermometers, one situated on the south east side of the house, one in a passage on the north-east, and the other in the balcony on the north-east; that the thermometers aforesaid were kept in the situation before [**15]  described until the end of the year 1821; and for the years 1822 and 1823, they were kept in the settled parts of the city of Baltimore; that witness is confident of the correctness of Mr. Brantz, who kept the tables; that in the opinion of the witness, judging from the tables, there was no ice in the basin from the twenty-first day of November to the fifth day of December 1821, unless there might be a little on the edge of the basin; that ice forms more readily at the same temperature late in the winter season, than at the commencement of the season. The plaintiffs further gave in evidence, that summer oil, when taken out of the hold of a vessel, will not congeal in the course of a single night, even at a low temperature of the atmosphere. And further gave in evidence the following copy of a letter from them to the defendant, proved to have been written by them, and put into the post office in Baltimore, directed to him at Nantucket--the defendant having received due notice to produce the original.'

"Baltimore, 21st June, 1822.

Capt. Peter Lewis, Sir--The oil which we bought of you on the 21st Nov. last, and warranted to be pure winter strained, being of different quality [**16]  from what it was represented, as you have long since been informed, and relative to which a suit is now pending, is every day wasting, and for the interest of all concerned, had better be sold. As it will probably be sacrificed if sold at auction, being an unusual way of selling that article, we propose, that by consent of both parties, and without prejudice to either, that it be put into the hands of Messrs. Payson & Co. who are your friends, and special bail in this case, for sale, and the nt. pds. to be paid over to us.

Your ob't. serv'ts.

(Signed,)     Osgood & Co."

And also gave in evidence, that the oil so purchased from the defendant, and delivered by him to the plaintiffs, was all stored in proper and suitable places for winter pressed oil, during all the time it was in their possession; and further, that some of the said oil was good winter pressed oil, and continued limpid through the severest weather of the winter of 1821 and 1822, while stored in the warehouse of the plaintiffs, and elsewhere, which warehouse was proved to be in good condition, unusually well built, and protected with shutters, and was kept closed on the back of the first floor, and wholly [**17]  closed in the second floor during the said winter. And further gave in evidence the following deposition of Richard Lemmon: "The deposition of Richard Lemmon, a witness produced, sworn and examined, on the part of the plaintiffs, and agreed to be read in evidence in the above cause. Deponent is one of the firm of Robert Lemmon and Company, auctioneers in the city of Baltimore, and was so in the months of October and November. In the year 1822 deponent was applied to in one of said months by plaintiffs, to advertise for sale a quantity of oil, which had been partly stored in the old exchange, where the whole of it was sold, with the exception of two casks of summer strained oil, which was sold last. The advertisement was accordingly published in one of the Baltimore newspapers, which state that the said oil would be sold for account of whom it might concern; and deponent believes that a longer notice than usual was given of said intended sale. On the 13th of November in said year, the sale of said oil commenced at public auction. Deponent acted as cryer on the said day; fifty-one casks and barrels of said oil were sold at public auction; six casks of which were winter strained oil.  [**18]  On the same day, thirteen casks of winter strained oil were sold at private sale, which had been previously offered at public auction, but was not sold, because it would not bring a sufficient price; of the six casks of winter strained oil, which were sold at public auction as aforesaid, one cask brought seventy-seven cents per gallon, one seventy-six cents and an half per gallon, and the other four seventy-five cents per gallon. The thirteen casks which were sold at private sale as aforesaid, were sold at seventy-five cents per gallon, the sale of winter strained oil being stopped on that day, because it would not bring seventy-five cents per gallon. The sale of the said thirteen casks at private sale, was beneficial to the owners of said oil, because if the sale at public auction had been pushed, it would not have brought so good a price. On the 14th of November, in said year, seven casks of winter strained oil, were sold at private sale, for seventy-five cents per gallon. On the 18th of said month, two casks of said oil were sold at private sale, and on the 19th of said month, three casks of said oil were sold at private sale. On the 26th of said month the sales of said oil were [**19]  closed, with two casks of summer strained oil. The particulars of the sale of said oil, as furnished by the firm of Robert Lemmon and Co. to the plaintiffs, in which the quantity sold, and the respective prices thereof, will appear by a reference to exhibit R. L. herewith filed; all the oil which was sold as winter strained oil, this deponent, by the orders of the plaintiffs, warranted as such to the purchasers. No warranty as to the balance of said oil, being winter strained, was made, but the purchasers were left to judge for themselves; but deponent stated at the time of sale that some of it might have been strained in the fall, and some of it in the summer. It was in the first place announced by deponent as summer strained oil, but he was stopped by one of the plaintiffs who stated to him that a part of said oil might have been strained in the fall, and part in the summer, and desired deponent to sell the oil without warranty as to quality, but permit the purchasers to judge for themselves. Deponent made this representation to the purchasers, and the sales went on." [Here follows the exhibit R L referred to in the foregoing deposition.

________________________________________________________________________________
The amount of sales	$ 3729 39 	
  Charges deducted	94 71 	
	
	$ 3634 68]	
________________________________________________________________________________

 [**20]  

And proved by a cross examination of the defendant's witnesses, that all those who purchased the oil as aforesaid, under such auction sale, (which was not warranted winter pressed,) sold or retailed the same as summer oil; and that the cask bought by one Butler, at the said sale, proved to be very bad summer oil, and not fit for use. And further, that the oil bought for winter pressed, sold at retail from one dollar to one dollar and twenty-five cents per gallon, and that which was not warranted winter pressed, sold by retail from sixty-two cents to one dollar. And the plaintiffs further gave in evidence that winter pressed oil, sold by retail by the gallon, in the winter of 1821 and 1822, at one dollar and fifty cents per gallon. The plaintiffs further gave in evidence, that the defendant admitted that some of the oil which he had previously sold as aforesaid to the plaintiffs, nobody could pretend to call winter pressed oil, and that the plaintiffs ought to be made whole; and he further added, that he had been deceived himself in the quality of the said oil. And further gave in evidence, that the defendant admitted that the oil was not as good as he sold it for.

The defendant [**21]  then gave in evidence, that before, and at the time of the sale of the said oil by the defendant to the plaintiffs, said oil was lying at Bowley's wharf, in the city of Baltimore, near to the warehouse of the plaintiffs, and that between the 21st of November 1821, and the 5th of December 1821, the same was landed on said wharf, and while so lying, was gauged by the city gaugers, they taking out the bungs of each cask and barrel, and inserting therein the gauging rod in each cask, for the purpose of ascertaining its contents; that while the said bungs were so out, and when the quantity of said oil was shipped as proved by the plaintiffs, to Alexandria, the clerks and agents of the plaintiffs saw the same, and that it was then limpid. The defendant further gave in evidence, the meteorological tables. He further gave in evidence, that what is termed summer oil, will, when the weather is at the freezing point, show itself by congealing, and even before the weather becomes so cold, that what is termed fall oil, will, in the same weather, also discover itself. He further gave in evidence, that all the said oil sold by the defendant to the plaintiffs, was winter pressed oil, and was pressed [**22]  by the manufacturers at Nantucket, in the months of January and February 1821, during the most favourable weather for making the best winter pressed oil, and of the best stock of materials. He further gave in evidence, that all of the said oil was made at Nantucket, in Massachusetts, and was shipped from that port by the manufacturers and owners, on board the defendant's vessel, consigned by them to the defendant as their agent. The defendant further offered in evidence the depositions of sundry witnesses, for the purpose of proving that the defendant received the said oil from the shippers, as winter pressed, and under a representation of its being winter pressed. [The evidence here produced taken under commissions issued for that purpose, was very voluminous, and which it has been deemed unnecessary to insert.] The defendant further gave in evidence, that he made the said sale to the plaintiffs, for and on account of the shippers and owners at Nantucket, but made no statement to that effect to the plaintiffs, or informed them of any agency, or disclosed the names of his owners to them; and that he paid over the proceeds of the oil to the owners and shippers, as stated in the said [**23]  depositions. The defendant further gave in evidence, that after the date of the said letter of the plaintiffs of the 22d day of December 1821, the plaintiffs retained the possession of the said oil, and from the time of the sale to them, and as low down as the 9th of March 1822, the plaintiffs continued to sell the oil as their own, both by wholesale and retail; and sold in their own names, thirty-four casks of the said oil as winter pressed oil, and advertised the same for sale as winter pressed oil as late as the 6th of February 1822. The defendant further gave in evidence, that some part of the said oil was purchased by certain persons at the sale made by the auctioneer, as stated in the plaintiffs' evidence, as summer oil, and at the price of summer oil; and further gave in evidence, that this part of said oil remained limpid during the whole of the winter, and if it had been sold to them as winter oil, it would not have been complained of by the said purchasers; and further gave in evidence, that summer oil would not continue limpid during the winter, if exposed, as this was, by the said purchasers. And the defendant offered evidence in order to shew that the said oil was winter [**24]  pressed oil, that one cask sold at the said auction to Groom, who had for many years kept a grocery store on Fell's Point, sold to him as not winter pressed oil, and at a summer oil price; that he kept the said oil in his cellar, which was not deep, and had a northern exposure, and that it remained limpid during the winter, and that he never had better oil. The defendant further gave in evidence, that the oil that is pressed in the winter months is called and known, and sold, as winter pressed oil, and that oil pressed during the winter, and when Fahrenheit's thermometer is below thirty degrees, is called and esteemed the best winter pressed oil; that winter pressed oil will congeal if exposed to weather colder than that in which it was pressed. He further gave in evidence, that the places in which the plaintiffs kept this oil, were not safe and proper places to keep winter oil through the winter season, and that the congealing of such oil, in such places, in the winter, is no proof of its not being winter pressed oil, and that winter pressed oil, once congealed, will remain congealed until warm weather. The defendant further gave in evidence, by the declarations of the defendant himself,  [**25]  as proved by the plaintiffs, and admitted by the plaintiffs to be evidence in this cause, that he, the defendant, had been deceived by his employers, the owners and manufacturers of said oil, and that he sold the said oil to the plaintiffs under such misapprehension. The defendant further gave in evidence, that the price of winter pressed oil begun to decline in March 1822, and from the 19th of March 1822, the price of such oil, by retail, fell to one dollar, and then eighty-seven and a half cents. The defendant then prayed the opinion of the court, and their direction to the jury, that the plaintiffs cannot recover on the fourth count in their declaration, unless they shall prove a warranty on the part of the defendant, that the oil was winter pressed oil; and that in this case the description of the oil in the bill of parcels, does not amount to a warranty. Which opinion and direction the Court [Hanson and Ward, A. J. Archer, Ch. J. dissenting,] gave to the jury. The plaintiffs excepted.

2. The plaintiffs then prayed the opinion of the court, and their direction to the jury, that the statement in the bill of parcels herein before set forth, that the oil therein mentioned was [**26]  winter pressed oil, was a warranty in law that the said oil, at the time of the sale and delivery thereof to the plaintiffs by the defendant, in the manner herein before stated, was winter pressed oil. Which opinion and direction, the Court (Archer, dissenting) refused to give; and the plaintiffs excepted.

3. The plaintiffs further prayed the opinion of the court, and their direction to the jury, that if the jury find from the evidence, that the oil mentioned in the bill of parcels, or a great part thereof, was not winter pressed oil at the time of the sale and delivery thereof by the defendant to the plaintiffs, as herein before stated, but was summer or fall oil, of inferior quality to winter pressed, and of less value, that then the plaintiffs are entitled to recover on the fourth count of the declaration filed in this case. Which opinion and direction the Court (Archer dissenting,) refused to give; and the plaintiffs excepted.

4. The plaintiffs further prayed the opinion of the court, and their direction to the jury, that if the jury find from the evidence, that at the time of the sale and delivery of the oil herein before mentioned, by the defendant to the plaintiffs,  [**27]  the defendant warranted the same to be winter pressed oil, and that the plaintiffs, relying on such warranty, purchased the same; and if the jury also find, that at the time of the said warranty and sale, the said oil was not winter pressed oil, but was summer or fall oil, and of inferior quality, and less value than winter pressed oil, that then the plaintiffs are entitled to recover. Which opinion and direction, the Court (Archer dissenting) did give to the jury; but also were of opinion, and so directed the jury, that there was no evidence in the cause of a warranty, and that the plaintiffs are not entitled to recover, unless they find from the evidence, that the oil was not winter pressed oil, and that the defendant, at the time of the sale, knew that the oil was not winter pressed oil. The plaintiffs excepted; and the verdict and judgment being against them, they appealed to this court.  

DISPOSITION:
JUDGMENT REVERSED, AND A PROCEDENDO AWARDED.  

HEADNOTES:

After verdict, the allegation of fraud and deceit in a declaration, is equivalent to the charge of an actual scienter.

In cases of express warranty, averments of fraud and deceit are immaterial.

Warranties on the sales of personal property have usually been divided into two classes, express and implied.

To create an express warranty, the word warrant need not be used, nor is any precise form of expression required; any affirmation of the quality or condition of the thing sold, (not uttered as matter of opinion, or belief,) made by the seller at the time of sale, for the purpose of assuring the buyer of the truth of the fact affirmed, and inducing him to make the purchase, if so received and relied on by the purchaser, is an express warranty.

In cases of oral contracts, it is the province of the jury to decide upon the existence of the ingredients necessary to constitute a warranty.

But in cases of written contracts, whether the instrument contain an express warranty or not, the court must determine.

Implied warranties arise by operation of law; they exist without any intention of the seller to create them, and may properly be divided into two kinds.

The one is untinctured by actual fraud or deceit, as the warranty of title, that provisions purchased for domestic use are wholesome--and in executory contracts, or where the purchaser had no opportunity of inspection, that the article contracted for shall be saleable as such in the market.

Other implied warranties are where fraud and deceit are of their very essence, as in cases where the seller of any article knowing of its unsoundness, uses any disguise or artifice to conceal it, or represents it, (whether in the way of expressing opinion, or belief, or otherwise,) to be exempt from such defect.

Implied warranties are not conclusions or inferences of fact drawn by a jury, but conclusions of law pronounced by the court absolutely, upon facts admitted or proved before the jury, or hypothetically, where the facts are controverted.

In actions on the case upon implied warranties, where the knowledge of the defendant is not an essential ingredient of the plaintiff's right of action, it need not be alleged nor proved.

The statement in a bill of parcels for a quantity of oil, that it was "winter pressed sperm oil," is an express warranty by the vendor, that such oil was winter pressed.

There is a distinction between oral and written contracts, that in the former much of the colloquium was never intended or understood by the parties to be essential component parts of the contract, while in the latter nothing is inserted which is immaterial, no fact stated which is not presumed to be relied upon by the parties; and for the truth of which the one does not bind himself to the other; upon this principle mere recitals in deeds have been held to be covenants.  

COUNSEL:
Williams, (District Attorney of U. S.) for the Appellants, contended, 1. On the first and second bills of exceptions--That the statement in the bill of parcels that the oil therein mentioned was winter pressed oil, is a warranty in law, that the [**28]  said oil, at the time of the sale and delivery thereof by the defendant to the plaintiffs, in the manner stated in the evidence, was winter pressed oil.

2. On the fourth bill of exceptions--That there was evidence of warranty that the oil in question was winter pressed oil. 1st. Because the bill of parcels contained such a warranty. 2d. Because if the bill of parcels did not per se import such a warranty, yet that, together with the declarations of the defendant, made at the time of the sale--the relation of the parties, and other circumstances, furnished evidence from which the jury might infer that there was such a warranty.

3. On the third bill of exceptions--That case is the proper form of action to recover for a loss sustained by a breach of such a warranty; and that the fourth count in the declaration is sufficient.

1. The whole question rests upon the fourth count in the declaration. A bill of parcels is a warranty, with certain exceptions, that the article therein mentioned is warranted to be of the quality described. 3 Stark. Evid. 1660, 1661, &c. Peake's Evid. 228. Long on Sales, 120, 124. Pasley v Freeman, 3 T. R. 53. Jones v Bowden, 4 Taunt. 847. Laing v [**29]  Fidgeon, 6 Taunt. 108, (1 Serg. & Low. 327.) S. C. 4 Campb. 169. Yates v Pym, 6 Taunt. 446. (1 Serg. & Low. 446.) Holcombe v Hewson, 2 Campb. 391. Tye v Finmore, 3 Campb. 462. Gardiner v Gray, 4 Campb. 144, 145. Bridge v Wain, 1 Stark. Rep. 504, (2 Serg. & Low. 486.) Shepherd v Kain, 5 Barn. & Ald. 240, (7 Serg. & Low. 82.) Defreeze v Trumper, 1 Johns. Rep. 274. Cramer v Bradshaw, 10 Johns. Rep. 484. Chapman v Murch, 19 Johns. Rep. 290. Roberts v Morgan, 2 Cowen's Rep. 438. Bradford v Manly, 13 Mass. Rep. 139. A written bill of parcels cannot be varied, &c. by parol evidence. Batturs v Sellers & Patterson, 6 Harr. & Johns. 249. Here there is no ambiguity in the meaning, winter pressed oil, as stated in the bill of parcels. There can be no doubt as to whether it meant winter pressed oil or summer pressed oil. The defendant is to be considered in this transaction as principal, and he cannot shield himself under the suggestion of his having sold the oil in question as the agent of others. An agent may warrant so as to bind himself personally; and this the defendant has done in this case. 3 Stark. Evid. 1663. Bradford v Manly, 13 Mass. Rep. 143. Jendwine v Slade, 2 Esp. Rep. 572. Baglehole [**30]  v Walters, 3 Campb. 154. Pickering v Dowson, 4 Taunt. 779. Parkinson v Lee, 2 East, 314. Chapman v Murch, 19 Johns. Rep. 290, (overruling Seixas v Woods, 2 Caine's Rep. 48.) 1 Am. Quar. Review, 121, by Mr. Hopkinson, a learned advocate of the Pennsylvania bar. Snell, Stagg & Co. v Moses & Sons, 1 Johns. Rep. 96. Sands & Crump v Taylor & Lovett, 5 Johns. Rep. 395. Sweet v Colegate, 20 Johns. Rep. 196.

2. Intention is always a matter of fact for the jury. 1 Stark. Evid. 428. 2 Stark. Evid. 741, 895. Sugd. 113. Jones v Bowden, 4 Taunt. 847. Helyear v Hawke, 5 Esp. Rep. 72. Medina v Stoughton, 1 Salk. 210. Pasley v Freeman, 3 T. R. 57. Capp v Topham, 6 East, 392. Seixas v Woods, 2 Caine's Rep. 48. Jackson v Hull, 10 Johns. Rep. 481. Chapman v Murch, 19 Johns. Rep. 290. Sweet v Colgate, 20 Johns. Rep. 196. Etting v Bank of United States, 11 Wheat. 59, 75. Jolly's Adm'rs. v Baltimore Equitable Society, &c 1 Harr. & Gill, 295.

3. The fourth count in the declaration is according to the form in 2 Chitty's Plead. 100, (note,) 277, 278. It is wholly immaterial whether it be an action on the case, or an action of assumpsit. 3 Blk. Com. 166. 2 Com. Cont. 263. 3 Stark. Evid. 1660. 1 Com.  [**31]  Dig. tit. Action on the Case, (A 11,) 237, 238. Pasley v Freeman, 3 T. R. 58. Pickering v Dowson, 4 Taunt. 779. Jones v Bowden, Ib. 847. Williamson v Allison, 2 East, 446. Govett v Radnidge, 3 East, 62. Richards v Simonds, 3 Wils. 40. Shepherd v Kain, 5 Barn. & Ald. 240, (7 Serg. & Low. 82.) Seixas v Woods, 2 Caine's Rep. 48. Barney v Dewey, 13 Johns. Rep. 224. 1 Chitty's Plead. 39, 138. 2 Blk. Com. 451.

R. Johnson, for the Appellee. The facts collected from the uncontradicted evidence in the cause--are, that the oil in question was manufactured at Nantucket, was there shipped in the fall of the year 1821 on board of the defendant's vessel, consigned to himself by the manufacturers, carried by him to Baltimore, and there sold by him as winter pressed oil, under an honest belief that it was such, as given in evidence by the plaintiffs, and as found by the verdict of the jury. That at the time of the sale, the oil was open to the inspection of the plaintiffs, and they, by their agents, did in fact superintend the gauging of it; and in making the sale the defendant acted only as the agent of the owners; and had no other opportunity of knowing the real condition of the oil, than the [**32]  plaintiffs had, who purchased. He made use of no artifice to prevent the plaintiffs from ascertaining the condition of the oil. The sale was made on the 21st of November 1821, and the oil was delivered between that day and the 5th of December following, on which last day the bill of parcels was signed and delivered. The evidence is, that the only difference between winter strained and other oil, is that the first is made in cold weather. The material is the same. The difference is only in the quality of the oil. In its capacity to stand a greater degree of cold, than the fall or summer oil. These, it is believed, are all the material facts which are necessary to be noticed in arguing the questions of law. It has been admitted that the whole case turns upon the fourth count in the declaration. At the trial below four bills of exceptions were taken by the plaintiffs. The first question arises as well under the second and third bills of exceptions, as under the first; and it is--Is the description in the bill of parcels, that the oil therein mentioned was winter pressed oil, a warranty of itself? 2. Does not that description, taken in connexion with the other facts given in evidence--such [**33]  as the admissions of the defendant--the relative situation of the parties, &c. furnish evidence from which the jury might infer a warranty? This question arises upon the fourth bill of exceptions. 3. Is an action on the case a proper remedy to recover damages for the breach of any other warranty, than an express one, unless the plaintiff proves, as well as alleges, that such warranty was falsely and fraudulently made? Can it in any other way be maintained on an implied warranty? The court below has not said that such an action cannot be sustained; on the contrary they directed the jury, in the fourth bill of exceptions, that if the defendant knew (to be found from the evidence,) the oil not to be winter pressed oil when he sold it, that then upon the whole case, the plaintiffs were entitled to recover.

1. As to the last question stated--can this action be maintained for the breach of any other than an express warranty, except by alleging and proving knowledge on the part of the defendant, and an intention to defraud, &c. 1 Chitty's Plead. 129. 2 Chitty's Plead. 100, (note) 276, 324, (note.) Williamson v Allison, 2 East, 446. 2 Selw. N. P. 580. Bridge v Wain, 2 Serg. & Low. 486.

2.  [**34]  Is the representation in the bill of parcels itself a warranty that the oil sold was winter pressed oil? The word warranty is not to be found in the bill of parcels, nor does it contain express words of promise that the oil was winter pressed oil. It contains nothing more than a representation of the thing sold--an affirmation of that character. The general rule is admitted to be, that at common law the maxim in the sale of property is caveat emptor. A sound price does not necessarily imply a sound article. Co. Litt. 102, b. 2 Blk. Com. 451. Johnston v Cope, 3 Harr. & Johns. 89. Parkinson v Lee, 2 East, 314. 2 Com. Cont. 265, 267, 272. 1 Fonbl. 120, 121, (note x.) 2 Fonbl. 280, (note h.) This rule is entirely independent of an opportunity to inspect, or an actual inspection. In Johnston v Cope, 3 Harr. & Johns. 89, there was no opportunity to inspect--the linens were sold in bales unopened, and the price paid was the price of merchantable linens. There could, therefore, have been no doubt that the purchaser intended to buy, and the vendor to sell merchantable linens. So in Williamson v Allison, 2 East, 448, (notes.) Gray v Cox, 10 Serg. & Low. 283. It does not depend, therefore, on [**35]  the belief or expectation of the parties. But the purchaser may guard against this maxim by taking a warranty from the seller; and the question here is, have the plaintiffs done so by taking the bill of parcels? Does the seller by that bill of parcels warrant the oil to be winter pressed oil? It may be, and is admitted that no particular form of words are necessary to make a warranty. The word warranty need not be used--any word of equivalent import is sufficient. The price paid is not sufficient, under the authorities cited, to authorise the inference that the parties intended a warranty; nor is the purpose for which the oil was to be used, and the understanding and usage of the trade in that particular, sufficient. That usage cannot control the general law. Thompson v Ashton, 14 Johns. Rep. 316. 1 Selw. N. P. 482. Parkinson v Lee, 2 East, 314. Bridge v Wain, 2 Serg. & Low. 486. There is nothing left upon the bill of parcels but the statement that the thing sold was winter pressed oil, and that statement being nothing more than an affirmation of the fact. Before this court can decide that it is a warranty, they must decide that an affirmation is in all cases a warranty, and is of [**36]  itself, and considered by itself, equivalent to the word warranty. There is no distinction between a difference in the thing, or in its quality. 1 Fonb. 120, (note x.) Is then an affirmation per se, a warranty? 2 Com. Cont. 265. Chandelor v Lopus, Cro. Jac. 4. 1 Selw. N. P. 486. 2 Com. Cont. 265. Co. Litt. 102, b. 1 Com. Dig. 238. Seixas v Woods, 2 Caine's Rep. 48. Swett v Colgate, 20 Johns. Rep 203. Pasley v Freeman, 3 T. R. 53, per Buller, J. The intention to warrant is not to be inferred from the intention to sell. It depends upon the intention with which the sale is made, and that intention is to be collected from the circumstances of the case, and to be proved by the plaintiff. Jendwine v Slade, 2 Esp. Rep. 572. Chapman v Murch, 19 Johns. Rep. 290. 2 Com. Cont. 272. 12 Vin. Ab. tit. Evidence, (6 E.) pl. 7. These cases show that the party did something more than affirm the fact. If it were otherwise an affirmation would in all cases be a warranty. 2 Blk. Com. 451. 3 Blk. Com. 166. Am. Reg. 122. There can be no difference in a representation of this sort in parol, and in writing. But the cases of Tye v Finmore, 3 Campb. 462, and Gardiner v Gray, 4 Campb. 145, have been much relied [**37]  on by the learned counsel on the other side. Unless the last case is founded on the idea that the common law maxim of caveat emptor does not apply where the party has no opportunity to inspect the commodity; or that the parties, under the circumstances of that case, intended only waste silk which was merchantable, then is the case clearly wrong. The mere fact of the article not being merchantable, is not sufficient, as appears by Parkinson v Lee, 2 East, 314, and Le Neuville v Nourse, 3 Campb. 350. Also Holden v Dakin, 4 Johns. Rep. 421. Gray v Cox, 10 Serg. & Low. 283.

Wirt, (Attorney-General of U. S.) on the same side. The contract of sale in general did not come into view in this case. It is not whether the plaintiffs might not maintain assumpsit on an implied warranty. But whether they can maintain this action on the case sounding in deceit--charging a fraudulent and deceitful warranty. Every count in the declaration is for deceit--the same as if they had stated that the defendant knowing at the time the representation to be false. The words used charged the scienter, in express terms. Bayard v Malcolm, 1 Johns. Rep. 453. 2 Chitty's Plead. 311, 318, (note a.) Craft v Boite,  [**38]  1 Saund. 242. Harman v Tappenden, 1 East, 563. Williamson v Allison, 2 East, 446. Where the party is charged with deceit and fraud, it must be proved. 2 Chitty's Plead. 316, (note u.) Upon an express warranty, the scienter need not be alleged or proved. But it is otherwise in the case of an implied warranty. 2 Selw. N. P. 580, 582, (note 2.) Where the word warranty is used in the books, it means express warranty. 1 Chitty's Plead. 140, (note l.) 2 Chitty's Plead 136, (note r.) The court below meant an express warranty. They say, in the fourth bill of exceptions, that if it was an express warranty, then the plaintiffs could recover, but that there was no evidence of an express warranty; and the plaintiffs could not recover unless the jury find that the oil was not winter pressed oil, and that the defendant knew it was not. Shepherd v Kain, 7 Serg. & Low. 82, though not fully reported, is a decision on the very case before this court. The bill of parcels is no evidence of an express warranty. A name given to an article in a bill of parcels is not an express warranty. It only amounts to an implied warranty. Parol evidence is not admissible to invalidate a bill of parcels. Who is to expound [**39]  it? The court. The opinion of the court below is correct according to the declaration, the evidence and the law. There must be wilful deceit, &c. 2 Dain's Ab. 560, s. 16. Where the warranty goes to the quality of the article sold, it must be an express warrant, or a deceit. 2 Com. Cont. 265. If this is a warranty, it goes to the quality of the article, and the plaintiffs cannot recover unless the warranty is an express warranty. Pasley v Freeman, 3 T. R. 57. Big. Dig. tit. Sale, (B) 536, 537, pl. 1, 4.

Taney, in reply. What was the plaintiffs' cause of action, and what their rights to be enforced in a court of justice? This arises under the first and second bills of exceptions. Is the statement in the bill of parcels a warranty or not? If it is an express warranty, the court below erred in their opinion in the first bill of exceptions; but if it is an implied warranty, then the court erred in their opinion in the second bill of exceptions The bill of parcels was a warranty--whether express or implied is immaterial. What is a warranty? It is a contract that a thing sold shall answer a particular quality. As for instance, that a horse shall be sound--that a particular thing or article [**40]  shall be of a particular quality. If the defendant contracted to deliver winter pressed oil--if he engaged to do so, it is enough. No parol evidence can be offered to change the contract as stated in the bill of parcels. Batturs v Sellers & Patterson, 6 Harr. & Johns. 249. The defendant affirmed in his bill of parcels, that he sold to the plaintiffs winter pressed oil. Every affirmation is a warranty, but there are exceptions as if it be the mere expression of an opinion. Peake's Evid. 228. Chapman v Murch, 19 Johns. Rep. 290. Long on Sales, 120, 124. 3 Stark. Evid. 1660 to 1663. Roberts v Morgan, 2 Cowen's Rep 438. Pasley v Freeman, 3 T. R. 57. The statement in the bill of parcels is an averment or declaration that the fact is as stated. It is a contract in relation to the article or thing delivered. It was an undertaking that the oil sold was winter pressed oil agreeably to the description given of it--an agreement that it should answer, as stated in the bill of parcels. Jones v Bowden, 4 Taunt. 847. Yates v Pym, 1 Serg. & Low. 446. Tye v Finmore, 3 Campb. 462. Gardiner v Gray, 4 Campb. 144. Bridge v Wain, 2 Serg. & Low. 486. Shepherd v Kain, 7 Serg. & Low. 82. Laing v Fidgeon, 1 [**41]  Serg. & Low. 327. In Chandelor v Lopus, Cro. Jac. 4, the point decided is law, although the dicta is not law. The cases cited from the New York reports are in conflict with the English decisions. Which are to be regarded as the soundest law? The New-York courts let in parol evidence to prove the intention of the parties to a bill of parcels. This court refused to do so in Batturs v Sellers & Patterson, 6 Harr. & Johns. 249.

The prayer in the third bill of exceptions assumes the bill of parcels to be a warranty. There was no distinction taken in the court below between an express and an implied warranty. It is now resorted to for the first time. Assumpsit or case will lie on an express warranty; and the fourth count is a good one on an express warranty; and it would be so in assumpsit. Upon an implied warranty, assumpsit will lie. But it has been urged that this is an implied warranty, and the plaintiffs cannot recover on the fourth count. There are different classes of implied warranties. But this is an express warranty, and must be treated as such. Implied warranties arise from the fraud or contract of the party. 3 Stark. Evid. 1660 to 1663. 2 Com. Cont. 267, 270. Tye v Finmore,  [**42]  3 Campb. 462. 2 Chitty's Plead. 277. It is not denied that case will lie on an implied warranty. 3 Blk. Com. 166. 2 Com. Cont. 263. 1 Fonbl. 120, (note z.) 2 Chitty's Plead. 278. Bayard v Malcolm, 1 Johns. Rep. 453. s Stark. Evid. 1660.

Curia adv. vult.  

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

OPINIONBY:
DORSEY 

OPINION:

 [*518]  DORSEY, J. delivered the opinion of the Court. Three questions have been argued in this cause. The first (presented by the 1st, 2d and 3d exceptions) is, whether the statement in the bill of parcels, that the oil therein mentioned was winter pressed, be a warranty of that fact? The second, (arising on the 4th exception,) is, whether upon the whole proof permitted to go to the jury, the county court erred in instructing them, that there was no evidence that the oil was warranted winter pressed? The third question (involved both in the third and fourth exceptions,) is, can the appellants, having sued in case, and charged fraud and deceit, recover without proof of a scienter?
It was not denied in the argument, that after verdict the allegation of fraud and deceit in the declaration is equivalent to the charge of an [**43]  actual scienter; and it was admitted, that if in this case there be an express warranty that the oil was winter pressed, then the averment of fraud and deceit is immaterial, and need not be proved.
Warranties on the sales of personal property have usually been divided into two classes, express and implied. To create an express warranty, the word "warrant" need not be used; nor is any precise form of expression required. Any affirmation of the quality or condition of the thing sold, (not uttered as matter of opinion or belief,) made by the seller at the time of sale, for the purpose of assuring the buyer of the truth of the fact affirmed, and inducing him to make the purchase; if so received and relied on by the purchaser, is an express warranty. And in cases of oral contracts on the existence of these necessary ingredients to such a warranty, it is the province of the jury to decide, upon considering all the circumstances attending the transaction. But of written contracts, the court are the expositors. Whether the instrument contain an express warranty or not, they must determine; not leave the question to be inferred by a jury from a consideration of facts aliunde.

 [*519]   [**44]  Implied warranties arise by operation of law; they exist without any intention of the seller to create them; and may properly be divided into two kinds. The one untinctured by actual fraud or deceit; as the warranty of title; warranty that provisions purchased for domestic use are wholesome; and the warranty in executory contracts, or where the purchaser had no opportunity of inspection, that the article contracted for shall be saleable as such in the market. The other kind of implied warranties are those where fraud and deceit are of their very essence; without which they do not exist; as in cases where the seller of any article, knowing of its unsoundness, uses any disguise or artifice to conceal it, or represents it, (whether in the way of expressing opinion or belief, or otherwise,) to be exempt from such defect. Implied warranties are not conclusions or inferences of fact drawn by a jury; but they are the conclusions or inferences of law, pronounced by the court, upon facts admitted or proved before the jury. If the facts be controverted, the court hypothetically instruct the jury, that if they find such and such facts, then there is an implied warranty, and their verdict must [**45]  be given accordingly; but if they do not find those facts then there is no implied warranty. Where an inquiry, therefore, is submitted to a jury, whether an affirmation or statement, made by the seller, of the quality of an article sold, be a warranty or not, the question would be, not whether it be an implied but an express warranty? Had the court below permitted this case to go to the jury to determine whether, upon the whole testimony offered, the oil was winter pressed oil, the question of express warranty only could have been the subject of their inquiry. The attempt therefore, by the appellee's counsel, to sustain the opinion of the county court, on the ground that the present action depends on an implied warranty, if these positions be correct, cannot avail them.
In support of the doctrine likewise insisted on, that conceding this to be an implied warranty, on which an action on the case could be sustained, without any allegation of fraud, yet, that fraud being charged must be proved, no case of acknowledged authority has been produced. The passages relied on to establish it in Selwyn's Nisi Prius, p. 482, 3, tit. Deceit, 

 [*520]  are mere statements of the principles [**46]  decided in Dale's case, Cro. Eliz. 44. Springwell v Allen, Alleyn 91, and Chandelor & Lopus, Cro. Jac 4. The only point adjudged in the two former of these cases is, that he who sells a chattel without title, is not answerable to the purchaser, (from whom the property is recovered by the rightful owner,) unless he made an express warranty, or knew of the defect of his title. And the only point settled by the last case, except that in pleading affirmation of a fact, does not mean a warranty thereof, is, that if the seller of a horse, knowing him to be unsound, affirm to the buyer that he is sound; or if the owner of a stone of no real value, knowing it to be such, sell it to a person unskilled in such articles, as a diamond of great value, and affirm it so to be; that no action lies against him by the purchaser whom he has defrauded; and that it is the same thing whether he knew his affirmations to be false, or believed them to be true. It is unnecessary to say, that these decisions are at war with the settled axioms of the law, as recognized in all modern cases and writers on the subject. In an action on the case, upon an express warranty, fraud and deceit, though alleged,  [**47]  need not be proved, because the allegation is immaterial, the action being sustainable without it. The same reason will produce the same consequence in all actions on the case on implied warranties, where the scienter is not an essential ingredient of the right of action. This view of the subject accords with that found in Long on Sales, 120; where in treating of warranties in sales of personal property, it is stated "some warranties are implied by law without any particular stipulation between the parties. Thus the seller is always understood to undertake that the commodity he sells is his own; and if it prove otherwise, an action on the case, in the nature of deceit, lies against him to exact damages for this deceit. In contracts for provisions, it is always implied that they are wholesome, and if they be not, the same remedy may be had." Yet in either of those cases the seller is liable, though ignorant of the defect. But if sued, as directed, "in nature of deceit," where the scienter or fraud and deceit are always alleged, no recovery can be had, according to the doctrine contended for, without proof of actual fraud. In such cases the fraud and deceit are intendments [**48]  

 [*521]  of law, not matters of fact necessary to be proved. As was justly observed by C. J. Anderson, who dissented from the other judges in Dale's case--"it shall be intended, that he that sold had knowledge whether they were his goods or not." It hence follows that the opinion of the county court cannot be supported on the principle urged in the argument of the third question.
Whether the statement, in the bill of parcels, that the oil was "winter pressed," be per se a warranty of that fact, is a question of more difficulty. In oral contracts much of the colloquium was never intended or understood by the parties to be essential component parts of the contract. But in written agreements nothing is inserted which is immaterial; no fact stated which is not presumed to be relied on by the parties, and for the truth of which the one does not bind himself to the other. Upon this principle it is, that mere recitals in deeds have been held to be covenants; upon this ground must rest the decision, that the action of covenant could be supported in Craemer v Bradshaw, 10 Johns. 484. There the plaintiff declared on a bill of sale, by which the defendant,  [**49]  in consideration of $ 175, bargained and sold to the plaintiff "a negro woman slave, named Sarah, aged about thirty years, being of sound wind and limb, free from all disease." And the defendant in due form, in the covenanting part of the instrument, (omitting every thing as to age or soundness,) covenanted only to warrant and defend the slave, so sold to the plaintiff, against the defendant, and all other persons. The alleged breach was, that the slave was unsound, and affected with divers diseases, &c. Per curiam the words in the bill of sale, "being of sound wind and limb, and free from all diseases," are an averment of a fact, and import an agreement to that effect. The words were not used as a mere description of the slave; they amount to an express, not an implied warranty; to a warranty of the soundness of the slave. The plaintiff is therefore entitled to judgment.
If the bill of parcels be considered as the written contract between the parties, the statement therein that the oil was "winter pressed," could not be considered as mere matter of description, or of opinion or belief of the seller; but as the 

 [*522]  averment of a material fact, of which he has taken [**50]  to himself the knowledge, and the existence of which he warrants. This court, however, has never decided, that the bill of parcels is the written contract; nor is it designed at this time to express any opinion upon that subject; but in Batturs v Sellers & Patterson, 5 H. & J. 116, and 6 H. & J. 249, this court did decide that the bill of parcels in that case was written evidence of the contract; and could not be added to, or varied by, oral testimony. It follows as a necessary consequence, that, if the bill of parcels be "the written evidence of the contract," the terms and expressions thereof must receive the same construction that would be given them if expounded from the written agreement itself; where calling it "winter pressed oil," would be a warranty that it was such.
Upon English authorities, independently of any decisions in this state, it would appear, that a statement in a bill of parcels, or any similar instrument, of the quality of an article sold, is a warranty thereof. In Yates v Pym, 6 Taunt. (Eng.) 446, an action upon a sale note, (an instrument of no greater solemnity or obligation than a bill of parcels,) "of [**51]  58 bales of prime singed bacon," on account of a taint in some of it, Justice Heath decided "that the contract amounted to a warranty that it was prime singed bacon, and being in writing could not be added to by parol evidence." And on motion to set aside the verdict, the opinion of the learned judge was sustained by the court of common pleas. In Shepherd v Kain, 5 Barn. & Ald. 240, an action on the case for breach of warranty; the only evidence of which was the advertisement of a vessel as "copper-fastened;" yet sold with all faults; upon proof that she was only partially copper-fastened, Best, J. determined that the plaintiff was entitled to recover; and this opinion was affirmed in the court of King's Bench. These are cases in which was recognized an express warranty of quality, from the mere statement thereof in the sale note or advertisement.
As establishing a contrary doctrine, has been cited for the appellee, the case of Jendwine v Slade, a nisi prius decision of Lord Kenyon, in 2 Esp. 572. The action was brought to recover damages on the sale of two pictures, sold under a catalogue, wherein the names of the artists, who [**52]  had been dead 

 [*523]  some centuries, were placed opposite to the pictures; the ground of action being, that the pictures were not the works of those artists, of which, it was alleged, the catalogue was a warranty. Lord Kenyon said, "it was impossible to make this the case of a warranty; the pictures were the work of artists some centuries back; and there being no way of tracing the picture itself, it could only be matter of opinion whether the picture in question was the work of the artist whose name it bore, or not. What then does the catalogue import? That in the opinion of the seller the picture is the work of the artist, whose name he has affixed to it." Looking only to the facts in the case of Jendwine v Slade, and the decision of the judge upon them, it might perhaps be considered as entitled to all the weight in favour of the appellee, which his counsel have ascribed to it. But when the explanation and grounds of the opinion, as given by the judge himself, are adverted to, their only application to the case at bar, is to recognize the plaintiff's right to recover. He states that it is impossible to make, putting the name of the artist in the catalogue opposite the [**53]  picture, a warranty, because it was the work of an artist some centuries back; and there being no way of tracing the picture itself, it could only be matter of opinion whether the picture in question was the work of the artist to whom it was imputed, or not. Suppose, instead of an ancient, it had been a picture of recent execution; what then, by necessary inference, would have been the opinion of the learned judge? Why, as there did exist a mode "of tracing the picture itself," therefore, by placing the name of the artist in the catalogue, opposite the picture, is not a mere expression of the opinion of the seller, but a warranty of the fact. The oil in controversy is no article of antiquity; it was manufactured but a short time before in Nantucket, where Lewis resided, and whence he brought it to Baltimore, and sold it as his own. Without great inconsistency and abandonment of his own reasoning, Lord Kenyon, (who decided Jendwine v Slade,) could not do otherwise than determine, that the statement in the bill of parcels that the oil was "winter pressed" was a warranty thereof.
As a general proposition, it is true, that in sales of personal property the seller is [**54]  not answerable for any defects in the 

 [*524]  quality or condition of the article sold, without an express warranty or fraud. But the universality of this rule is qualified by many exceptions, much more inconsistent with it than the principle on which the appellants here rest their right to recover. As if a manufacturer contract to furnish goods at a stipulated (even though it be a reduced) price, there is an implied warranty that the goods delivered be of merchantable quality. To this effect is the case of Laing v Fidgeon, 6 Taunt. (Eng.) 108. So also, if the buyer had no opportunity of ascertaining by inspection, the quality of the article, there is an implied warranty that it be saleable in the market, under the denomination by which it was sold. Such are the cases of Gardiner v Gray, 4 Camp. 144, and Bridge v Wain, 1 Stark. 504. It is not sufficient, that the article delivered, abstractedly bear the name of that contracted for; it must do more; there is an implied warranty, that it be of that quality which a commodity of that name must possess to be saleable in the market. Nay, such is the disposition of courts of justice to [**55]  ingraft exceptions upon this general rule of law, that in Gray and another v Cox and others, in 4 B. & C. 108, Abbott, C. J. decided, "that the defendants, having sold the copper to be applied to a specific purpose, and having received for it the market price of the day, must in law be considered as warranting it to be reasonably fit for that purpose. And the same doctrine was previously avowed in Bluett v Osborne and another, 1 Stark. 384, by Lord Ellenborough, who stated, that "a person who sells, impliedly warrants that the thing sold shall answer the purpose for which it was sold.
The cases of Seixas v Woods, 2 Caine's Rep. 48, and Swett v Colegate, 20 Johns. 196, have been mainly relied on for the appellee; and it must be admitted, that upon the principles on which they are professedly decided, it is not possible to reconcile them with the decisions in England, which have been referred to. Regarding the facts only of these New York cases, it might perhaps be urged, (but whether upon sustainable ground or not, we mean to intimate no opinion,) that they differ from the case at bar in this; here [**56]  the statement relied on as a warranty, is of the quality of the thing sold, viz. that it was "winter pressed;" there the question was, whether the 

 [*525]  selling an article as Brazilletto or Barilla, creates an implied warranty, that it be that for which it is sold. The court there, however, have placed their opinions upon no such distinction; but have broadly determined, that the shewing by the seller to the purchaser, of the invoice representing the quality, the advertisement of sale, and bill of parcels delivered to the buyer, all representing the same fact, are no evidence of a warranty (either express or implied,) of the quality of the article sold. Justices Thompson and Kent, by whom Seixas v Woods was decided, (Lewis, C. J. having dissented,) appear mainly to found their opinion upon the two old cases of Chandler v Lopus, and Springwell v Allen; to the former of which they are made by the reporter to give an entirely new version. They state the decision of the court to have been, that an action of trespass would not lie for selling a jewel, affirming it to be a Bezar stone, when in truth it was not, unless the defendant knew it not to be [**57]  Bezar stone, or had warranted it to be such. The court in that case made no such decision. They held the declaration to be ill, "for as much as no warranty is alleged," (the nar having only stated, that the goldsmith "affirmed to Lopus that the stone was a Bezar stone.") And so far from intimating an opinion that the action could have been sustained, if the goldsmith had known the stone not to be a Bezar stone, they expressly state, that "although he knew it to be no Bezar stone, it is not material; for every one, in selling his wares, will affirm that his wares are good, or the horse which he sells is sound; yet if he does not warrant them to be so, it is no cause of action." As to Springwell v Allen, it professes to settle precisely the same question which arose in Dale's case; that no action would lie against a man selling the horse of another, which he believed to be his own. Many other cases are relied on, in Seixas v Woods, some of which are applicable to sales of real property only; and in none of them can aught be found further sustaining the opinion there pronounced, or more strongly militating against that now given, than the general rule before laid down,  [**58]  that in sales of personal property no warranty of quality is implied.
The case of Swett v Colegate, 20 Johns. 196, is in fact, a mere reiteration of what was decided in Seixas v Woods. 

 [*526]  The weight of the authority of Seixas v Woods, (and consequently of Swett v Colegate,) is however somewhat shaken by that distinguished jurist the late Chancellor Kent, by whom it was decided. In his Commentaries vol. the 2d, page 274-5, after ample time for the most thorough investigation and mature deliberation upon the subject, when treating "of the implied warranty of the articles sold," he says "in Seixas v Woods, the rule was examined and declared to be, that if there was no express warranty by the seller, or fraud on his part, the buyer who examines the article himself, must abide by all losses arising from latent defects equally unknown to both parties; and the same rule was again declared in Swett v Colegate. There is no doubt of the general rule of law as laid down in Seixas v Woods; and the only doubt is whether it was well applied in that case, where there was a description in writing of the article by the vendor which proved not [**59]  to be correct, and from which a warranty might have been inferred." But yield to those cases (what we think them by no means entitled to) the full effect of establishing the universality of the rule, without an exception, that nothing but an express warranty or fraud will enable a purchaser to obtain an indemnity for a defect of quality in the thing purchased, the case before us stands unaffected by it. The statement in the bill of parcels that the oil was "winter pressed" is regarded as an express warranty; and under the decision in Batturs v Sellers & Patterson, 6 H. & J. 249, the court and not the jury, is the tribunal so to declare it. The opinions of the county court, therefore, in none of the exceptions, can be sustained.
But suppose the bill of parcels is not to be construed in the same manner that a written agreement between the parties should be, and is to be regarded as a mere receipt, and that, notwithstanding the case of Batturs v Sellers & Patterson, 6 H. & J. 249, parol evidence might be offered to prove the contract--is it possible that a jury could attach less weight to the written statement in the bill of parcels than they would do [**60]  to Lewis's verbal affirmation of the same fact; which affirmation is an express warranty if so intended to be; of which intention in oral contracts the jury only are competent to judge. Adverting then to some of the leading facts in proof 

 [*527]  by the appellants, that they, for the first time, were about to become dealers in sperm oil; that "winter pressed" was of nearly double the value of summer pressed oil; that the price paid was that of winter pressed oil; that such was the temperature of the weather at the time of sale, that the most experienced dealers in the article could not distinguish the one from the other, but by the aid of chemical experiments by men of science; that in the bill of parcels it was denominated "winter pressed" oil; and that the appellee had admitted that he had sold it for best winter pressed oil, and that it was not, what he had sold it for; can the instruction given to the jury (as stated in the 4th exception,) that there was no evidence of a warranty be for one moment sustained? Would it have been an unreasonable inference from the facts to be drawn by the jury, that in the verbal contract the appellants required and received a warranty [**61]  of quality? Upon what other ground can its insertion in the bill of parcels be accounted for?
It matters not that this testimony be contradicted, its force impaired by the proof adduced on the part of the appellee; in such circumstances it is the jury, not the court, who are to decide.
Dissenting from the opinions of the county court, on all the exceptions, let their
JUDGMENT BE REVERSED, AND A PROCEDENDO AWARDED.  

8 of 44 DOCUMENTS 

SIEMER'S, Adm'r vs. SIEMER AND WIFE, 

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

2 G. & J. 100; 1829 Md. LEXIS 12 

December, 1829, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from the Orphans Court of Baltimore county.

A petition was filed by the appellees, Henry Siemer and Gesche, his wife, in the Orphans Court of Baltimore County, on the 3d of April, 1827, setting forth, that a certain John Siemer, late of Baltimore county, deceased, a native of Germany, did, when he was about leaving his country for the United States of America, execute a will, in the German language, which, by the order of that Court, was accepted as the last will and testament of the said Siemer, and admitted to be recorded as such in the Register of Wills' office, of said county; a copy of which, (as translated,) the petitioners exhibit as part of their petition. They state that Charles F. Mayer, (the appellant) had taken out letters of administration on the estate of the said John Siemer, who resided and died in the city of Baltimore, having never returned after leaving Germany as aforesaid, to that country. That said letters of administration, were granted without any knowledge of an existing will: that the administrator had proceeded to execute his trust, and after due notice, all the creditors of the estate had been paid. That several years have elapsed since the [**2]  granting of administration, and that on the 2d of April, 1827, the said administrator had passed his third account, showing a balance in his hands of about $ 1278 42. That after said will was received, and ordered to be recorded, letters of administration, with the will annexed, were issued to said Mayer--they allege that Gesche, one of the petitioners, is the Gesche Warneken, in said will named, she having married the other petitioner, Henry Siemer, and they claim, that by virtue of said will, the petitioner, Gesche, is the only legatee of said deceased, and as such, entitled to the whole of the residuum of his estate, the time for the payment of which they say has arrived. Prayer, that the defendant may be summoned to answer, pass a final account, and that the balance in his hands may be paid over, and delivered to the petitioners, &c.

The will of John Siemer referred to in the preceding petition, is dated on the 28th of April, 1801. The testator, after declaring it to be his intention then to make his judicial testament, having (as he says) at that time, in view to depart for America in a few days, for the purpose of seeking his fortune. "He declares his deliberate will to [**3]  be, that in case he should die unmarried in a foreign country, the small Opeman Cottage, situate at Dreye, should be retained as heritable property, by his near relation Gesche Warneken, the eldest daughter of Johann Warneken, farmer at Dreye, whom he hereby deliberately constitutes his sole heiress; she and her father, however, shall be held to pay to the three daughters of the toll collector, Wicken Warneken, at Dreye, to wit, Margaret, Antrine, and Gesche, five hundred six dollars in gold. As a legacy to his guardian Christopher Eggers, he devises the turf moor, &c."

The answer of the defendant, admits the granting to him of letters of administration, on the estate of said Siemer, as alleged, and that he proceeded in the execution of his trust in the manner stated, and that letters of administration, with the will of the said Siemer annexed, were subsequently granted him as the petitioners allege--the respondent further admits, that the paper referred to and exhibited by the petitioners, was received by the Orphans Court of Baltimore county, as the last will and testament of the said John Siemer, and that said Siemer pronounced the same as his will, before he left his native [**4]  country, Germany, as stated by the petitioners, and that said Siemer, after so making his will, and leaving Germany, never returned, and that he died in the city of Baltimore, where he had resided from the time of his arrival in the United States, unmarried, and without issue. The respondent further admits, that the Gesche Warneken, named in said will, and the Gesche Siemer, the petitioner, are one and the same person, and that she is the wife of the petitioner, Henry Siemer; but he denies that by virtue of said will, and the terms of any bequest or disposition therein, the said Gesche Siemer is entitled to have the funds or property of the deceased, John Siemer, exclusively to herself, as universal legatee, and without any participation of the next of kin of the said Siemer of equal degree with her; and he insists, that the residue of the personal estate of the said Siemer, in his hands remaining, (all the debts being admitted to be paid) ought to be distributed in equal shares among the four cousins of the said deceased, who are his next of kin (named in the answer,) and of whom the petitioner, Gesche, is one. He further says, that he has rendered to the said Court, a final account [**5]  of his administration, with the will annexed, by which, a balance is shown to be in his hands of $ 1268 16. It was admitted that the persons mentioned in the answer as to the next of kin of the said John Siemer, in equal degree with the petitioner, are so the next of kin in equal degree.

A commission was sent to Germany to take proof, but as the opinion of the Court of Appeals turned entirely upon the construction of the will of Siemer, it is not necessary to set out the proof taken and returned under it.

The Orphans Court, on the 21st of May, 1827, decreed that the defendant, Charles F. Mayer, administrator as aforesaid of John Siemer, deceased, pay over to the petitioners in this cause, the balance remaining in his hands due the estate of said deceased, as appears by his last account rendered to this court.

From this decree, the defendant appealed to the Court of Appeals.  

DISPOSITION:
DECREE AFFIRMED.  

HEADNOTES:

A Testator, after reciting in his will (which was executed in Germany) his intention to depart in a few days for America, "for the purpose of seeking his fortune," devised as follows: "He declares his deliberate will to be, that in case he should die unmarried in a foreign country, the small Opeman Cottage, situate at D, should be retained as heritable property, by his near relation G, the eldest daughter of I, farmer, at D, whom he hereby constitutes his sole heiress. She and her father, however, shall be held to pay to the three daughters of W and D," a certain sum, as a legacy. "To his guardian C, he devises the turf moor at, &c." After this the testator came to Baltimore, where he died unmarried, and without issue, leaving personal property. Held that upon the true construction of this will, G was entitled to the whole of the Testator's personal estate; as it was his intention by the words "sole heiress," to give her every thing he had, except the property specifically devised, in the event of his dying unmarried in a foreign country. 

COUNSEL:
Mayer, for the appellant, insisted,

1. That under the proper construction of the will, Gesche Siemer is entitled only to the property (the Cottage,) there specifically devised. 2. That even if the terms of the will, purported to give her the personal estate in question,  [**6]  yet that the will not being executed, agreeably to our laws, cannot be considered effectual for that purpose; the personal estate being here, and this having been the country of the deceased Siemer's residence at his death. Upon the first point he referred to 4 Bac. Ab. 254, 258. Pratt's Lessee, vs. Flamer, et. al. 5 Harr. and Johns. 10. Dallam vs. Dallam, 7 Harr. and Johns. 222. 4 Bac. Ab. 323. Halloway vs. Halloway, 5 Ves. 399. 4 Bac. Ab. 350. On the 2d point he cited, Desebats vs. Berquier, 1 Binney, 336. Sill vs. Worswick, 1 H. Blk. 690. De Sobry ex'r. of Terrier De Laistre vs. Terrier De Laistre, 2 Harr. and Johns. 191, 200. Harvey vs. Richards, 1 Mason, 403, 412. Dixon's ex'rs, vs. Ramsay's ex'rs 3 Cranch, 319. Marsh vs. Hutchinson, 2 Bos. and Pull. 226. Amb. 25. Ib. 415. Holmes vs. Remsen, 4 Johns. Ch. Rep. 478. Act of 1810, ch. 34.

Frick, for the appellee. Personal property has no locality, but follows the person of the owner, and is to be distributed according to the laws of the domicil of the deceased. The will has been admitted to probate in the Orphans Court of Baltimore county, and is in conformity with the laws of Germany, and this State. 2 Black. Com. 501. 2 Com.  [**7]  Rep. 452, 453, 454. Tilghman vs. Steuart, 4 Harr. and Johns. 166, 173. Matthews vs. Warner, 4 Ves. 197, 201. Beauchamp vs. Earl of Hardwicke, 5 Ves. 285. It is immaterial where the will was made, it will operate here. The testator intended to constitute Gesche Warneken, sole heiress of all his real and personal property, not given to others. When the meaning of the term "sole heiress," as understood in Germany is ascertained, the Court will apply it here. In the German language the word "legatee" is not known, and this will was written in the German language. We have a right to refer to the civil law, to ascertain the meaning of the term "sole heiress," in the German language. 4 Bac. Ab. 242, 339, 337. Attorney General vs. Butler, 5 Ves. 339. Hays on ad'rs. 217. Doe vs. Lyde, 1 Term Rep. 597. Although the testator died here, it is not shown that this State was his domicil. The will shows he intended to return. Guier vs. O'Daniel, (note) 1 Binney, 351. Babtiste, et. al. vs. De Volunbrun, 5 Harr. and Johns. 86. Somerville vs. Lord Somerville, 5 Ves. 787.  

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

OPINIONBY:
BUCHANAN 

OPINION:

 [*104]  BUCHANAN,  [**8]  Ch. J. delivered the opinion of the Court.
The only question in this case arises upon the construction of the will of John Siemer, deceased, admitted to probate and recorded in the Orphans Court of Baltimore county.
And that question is, whether by the terms of the will, Gesche Warneken, the person therein named, now Gesche Siemer, on the death of the testator in this State, unmarried and without issue, (which is admitted,) became entitled 

 [*105]  as residuary legatee, to the whole of his personal property left by him in this State, at his death, after the payment of his debts, and the charges and expenses incident to the administration. The testator, after reciting in his will, (which was executed in Germany,) his intention to depart in a few days for America, for the purpose of seeking his fortune, devises, in the event of his dying unmarried in a foreign country, a small cottage by name, to Gesche Warneken, whom he constitutes in terms "his sole heiress;" and after directing the payment by her and her father, of a sum of money bequeathed as a legacy to others named in the will, devises the turf moor belonging to his place, to Christopher Eggers [**9]  .
The will having been admitted to probate and record, without appeal, and there being no question presented by the record in this case upon that subject, the only inquiry to which our attention is called, is, what was the intention of the testator, in the use of the terms "sole heiress;" and whether the terms used, are such, as to be sufficient to effectuate that intention, that being the only matter involved in the decision appealed from. Thus restricted, the whole case lies within a very narrow compass.
There is nothing to show, that the testator owned any property any where, other than that disposed of in his will, at the time of making it; and looking to the circumstances under which the will was made, would lead to the conclusion, that he had no other, and made his will, with a view of guarding against casualties, and of securing all he had, to those for whom he felt the most lively interest, and from whom he was soon to part.
The will informs us, that in a few days he was about to leave his "native country," for a foreign and a distant land, for the purpose of seeking his fortune; and when, at such a juncture, he deemed it necessary to make a will at all, it is not to be presumed [**10]  that he would have left behind him any of his property undisposed of; and if he did make an eventual disposition of all he had at that time, (and there is nothing 

 [*106]  appearing to the contrary,) the provision in his will, constituting Gesche Warneken his "sole heiress," was perfectly nugatory, unless he had an eye to future acquisitions, which he intended for her benefit, "in case he should (in the language of the will) die unmarried in a foreign country;" and the introduction of that condition in his will, of his dying unmarried in a foreign country, shows that he looked to acquisitions in a foreign country, which he intended should go to her, in the event of his dying abroad and unmarried; if, by his will, he did dispose of all the property he had at that time in Germany, otherwise, in no event, could there have been any thing for the provision constituting her his "sole heiress," to operate upon. Nothing in Germany, all he had there, being already disposed of; and if he married, or returned to Germany, and did not die in a foreign country, she was to take nothing under the will. Yet he certainly did intend, that provision should operate upon something,  [**11]  in the event of his dying abroad and unmarried; and the will, reciting that he was about to depart for America, for the purpose of seeking his fortune, instructs us, that he calculated on acquiring property here. But it is not material, in the construction of the will, whether the testator had, or had not any other property at the time, than that mentioned in it. He could not have intended to apply the provision constituting Gesche Warneken "his sole heiress," to that which had before been given to her, nor to that which was given to another; but must have intended it to operate upon what was not otherwise disposed of. The occasion of his making his will, and the very terms of it sufficiently show, that he meant to dispose of the whole of his property of whatsoever kind it might be, and did not intend to die intestate of any part of it, whether in Germany, or acquired in a foreign country, for which he was about to depart to seek his fortune; and there is nothing to raise the slightest supposition, that he had not acquisitions made abroad, equally in contemplation with any property in Germany. He was going from his country and 

 [*107]  his friends, and made his will,  [**12]  with a view of providing for the contingency of his dying among strangers, which shows that he meant to leave nothing undisposed of; and that with the emphatic terms used, "sole heiress," evinces the intention, that Gesche Warneken, who seems to have been the peculiar object of his bounty, should take whatsoever he might leave, and not otherwise disposed of by his will, in the specified event of his dying unmarried in a foreign country; and we think the terms used, by which the intention is manifested, are sufficient to effectuate that intention, and to entitle Gesche Warneken to the whole of the personal property left at his death in this State, after the payment of his debts, and other proper charges. Not indeed as heiress, for taking under the will, she could not, if it was real property to be affected by it, take in that capacity, but by purchase, as a legatee. The constituting her "sole heiress," being in effect, to give her every thing he had; and in relation to personal property, equivalent to a bequest of all he possessed. It is an expression of his will, that she should have the whole of his estate in the event specified, in any capacity in which she could take it,  [**13]  either as devisee or legatee: as much so, as if he had said my will is, Gesche Warneken shall take, (or have) the whole of my estate, in case I should die unmarried in a foreign country, which would clearly carry the property in controversy, there being no set form of words necessary; and it is enough if the words used sufficiently manifested the meaning and will of the testator.
DECREE AFFIRMED.  

9 of 44 DOCUMENTS 

MITCHELL vs. DALL.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

2 H. & G. 159; 1828 Md. LEXIS 10 

June, 1827, Argued 

June, 1828, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court. This was an action of assumpsit to recover the sum of $ 552 97, brought by the appellant, (the plaintiff in the court below,) against the appellee, (the defendant in that court.) The declaration contained five counts. The first averred, that on the 3d of January 1821, at, &c. in consideration that the plaintiff, at the special instance and request of the defendant, would sell and deliver to Archibald Austin, agent of Jacob Lewis & Co. on a credit of four months, certain goods, wares and merchandize, the defendant undertook, and then and there faithfully promised the plaintiff, to be accountable to him for whatever goods he should sell and deliver to the said Austin at that time, on a credit of four months. And that, confiding in the promise of the defendant, he did on the day and year aforesaid, at, &c. sell and deliver to the said Austin, the agent aforesaid, on a credit of four months, certain goods of great value, at and for certain reasonable prices, then and there agreed upon between the said Austin and the plaintiff, amounting in the whole to the sum of $ 600. And although the credit and time for payment of the price of the said goods, hath [**2]  long since elapsed, yet the said Austin hath not, although often thereto requested, as yet paid the said sum of money, or any part thereof, but hath hitherto wholly neglected and refused so to do, to wit, at, &c. Of all which said premises the defendant afterwards, on, &c. at, &c. had notice; and thereby the defendant then and there became liable to pay the plaintiff the said sum of money when he the defendant should be thereto afterwards requested; and being so liable, the defendant promised to pay, &c. The second count was on the same guarantee, though in a different form, stating, after the refusal of Austin to pay, &c. That of all which premises the defendant, afterwards, to wit, on, &c. at, &c. had notice; yet the defendant not regarding his said last mentioned promise and undertaking, hath not yet guaranteed or paid to the plaintiff the said last mentioned sum of money, or any part thereof, although requested, &c. The third count was for work and labour; goods sold and delivered; for money lent and advanced; and for money had and received, &c. The fourth count was for goods, &c. sold to Austin at the defendant's request; and the fifth count was on an insimul computassent. The [**3]  defendant pleaded non assumpsit, on which issue was joined.

1. The defendant's first bill of exceptions. At the trial the plaintiff gave in evidence the following letter of guaranty, and the memorandum annexed to it, both of which was admitted to be in the handwriting of the defendant. "Baltimore, January 3, 1821. Mr. M. P. Mitchell--Sir, As Mr. Archibald Austin, the agent of Jacob Lewis & Co. wishes to obtain some goods of you on a credit of four months, I hereby agree to guarantee the payment for the amount he may take at this time, if that will facilitate the business between you and him.

Yrs. &c.     James Dall."

________________________________________________________________________________
"Amount for which James Dall is	
responsible. Goods per	
bill of M. P. M.	$ 372 07 	
Do. Charles Moss's bill,	180 90 	
	
	$ 552 97"	
________________________________________________________________________________

The defendant then offered to prove, that at the date of the said guaranty, the plaintiff was a partner of Charles H. Appleton and William Henry, trading under the firm of M. P. Mitchell, and that the contract of guaranty was made by the defendant with the said co-partnership, and not with the plaintiff; and the goods so delivered under the guaranty, were the goods of the said firm; and that [**4]  the plaintiff did not carry on any business in his individual capacity at the time before and after the guaranty was entered into. Which evidence the Court, [Archer, Ch. J. and Hanson and Ward, A. J.] on the motion of the plaintiff, rejected. The defendant excepted.

2. The defendant's second bill of exceptions. He prayed the court to direct the jury, that the evidence having shown that on the 25th of October 1820, Mitchell, (the plaintiff,) Charles H. Appleton and William Henry, trading under the firm of M. P. Mitchell, sold to Jacob Lewis & Co. goods to the amount of $ 395 89, and that the sale of goods referred to in the guaranty having been made, according to the direction of the court as set forth in the first bill of exceptions by the plaintiff, in his individual capacity; and the receipts for money paid by the defendant having been paid to, and receipted for, by the plaintiff; and no evidence having been offered of any appropriation of money by Lewis & Co. to the extinguishment of the debt due from them to the co-partnership concern of M. P. Mitchell, the jury are bound to apply such payments to the extinguishment of the debt due from Lewis & Co. to the plaintiff in his [**5]  individual capacity, for which debt the defendant was guaranty, and not to the debt due by Lewis & Co. to the co-partnership of M. P. Mitchell. Which direction the court refused to give. The defendant excepted.

3. The defendant's third bill of exceptions. He further moved the court to direct the jury, that upon the whole of the evidence given in this cause, as set forth in the several bills of exceptions, if the jury believe the same, the plaintiff was not entitled to recover. Which prayer the court refused to give. The defendant excepted.

4. The plaintiff's first bill of exceptions. The plaintiff, after having given in evidence the matters stated as having been given by him, in the defendant's bills of exceptions, further offered to give in evidence the following letters, purporting to be a copy of a letter from the said firm to J. Lewis & Co. the persons mentioned in the aforesaid guaranty of the defendant, dated Baltimore, the 7th of May 1821, viz. "I have this day drawn on you at three days sight, in favour of J. C. Richards, Esqr. for $ 395 89, amount of your purchase 25th October last, on six months credit. Your last purchase is also due.

M. P. Mitchell."

The [**6]  said copy of the said letter appearing and being copied in a book kept for the purpose of copying letters of the said firm, as proved by a competent witness, and was offered in evidence by the offer of said book. The plaintiff also offered in evidence the following letter, admitted to be written by the agent of Lewis & Co. to M. P. Mitchell, which letter was produced on the trial by the plaintiff, dated Havre-de-Grace, May 8th, 1821, viz. "We regret to observe by yours of the 7th inst. that you have drawn upon us, at three days sight, for three hundred and ninety-five dollars and eighty-nine cents; not having funds here at this time to meet it, but we presume before the draft becomes payable, you will be paid the amount of it, having directed Mr. John P. Austin, who we dispatched on Saturday week to Norfolk, for money due by the government on deliveries of stone, to pay Mr. Dall the amount of the first invoice, to pay over to you, on his return through Baltimore. We wrote Mr. Dall to this effect; but as it would appear he has not informed you, we presume he must have been absent, as Mr. Austin was directed to return with all possible dispatch; and having intelligence of his leaving [**7]  Old Point Comfort on Wednesday last, we have no doubt, he will be in Baltimore in a few days, when he or Mr. Dall will call and pay the amount of your draft." Signed Jacob Lewis & Co. per A. Austin. To the admissibility of which letters, the defendant objected; and the court sustained the objection, being of opinion that the said letters were not competent evidence. The plaintiff excepted.

5. The plaintiff's second bill of exceptions. The plaintiff then gave in evidence the following paper writing, being the letter of guaranty in the defendant's bill of exceptions. All of which were admitted to be in the handwriting of the defendant; and proved the delivery of said goods to the amount of $ 552 97, to Archibald Austin, the agent of Jacob Lewis, & Co. and that on the 25th of October 1820, he, as one of the firm of Appleton, Henry & Mitchell, which firm was carried on under the name of M. P. Mitchell alone, sold to the said Jacob Lewis, & Co. goods to the amount of $ 395 89. The defendant then gave in evidence the two following receipts and letter from the plaintiff to the defendant. "$ 400. Baltimore, May 10th, 1821. Received of Jacob Lewis, & Co. through James Dall, four hundred [**8]  dollars on account.

M. P. Mitchell.

"Baltimore, 16th June, 1821. Received of Mr. Jas. Dall, per account of Messrs. Jacob Lewis, & Co. of Havre-de, Grace, four hundred dollars.

$ 400 00.     M. P. Mitchell.

"Baltimore, 5th May, 1821. Mr. J. Dall--Dear Sir, I think it necessary to inform you, that the amount for which you have become responsible with me, for Mr. A. Austin, agent for J. Lewis, & Co. becomes due this day. Very respectfully, your obt. servt.     M. P. Mitchell."

The plaintiff to show that the amount specified in the first of said receipts, dated May 10th, 1821, was intended to be applied in discharging of the first debt of $ 395 89, offered to prove, that he drew a draft on Jacob Lewis, & Co. dated the 7th of May, 1821, at 30 days sight; for $ 395 89, which on presentation was not paid, and which was returned to the plaintiff, and was by him mislaid, and for which he has made diligent search, but which he has been unable to find; and in connexion therewith offered to read in evidence the letter herein before mentioned, dated the 8th of May, 1821, (written by Archibald Austin, who it was admitted was the general agent of Jacob Lewis, & Co.  [**9]  and in whose handwriting said letter was written;) and also offered in evidence, the receipt of the plaintiff dated 10th of May, 1821, to the defendant. To which last mentioned evidence; that is to say, proof of the draft drawn by the plaintiff on Jacob Lewis, & Co. of the 7th of May, 1821, at 30 days sight, for $ 395 89, and the letter from Austin, the defendant objected. Which objection the court sustained. The plaintiff excepted.

6. The plaintiff's third bill of exceptions. The plaintiff, on the evidence stated in the prior bills of exceptions, as offered by both the plaintiff and the defendant, prayed the court to direct the jury, that if they are of opinion, from said evidence, that the payment of $ 800, (made as appears by the receipts given in evidence by the defendant,) was not directed by Lewis, & Co. or by the defendant, to be applied to the discharge of the debt due by Lewis & Co. guaranteed by the defendant, that the plaintiff had a right to apply such payment to the discharge of the debt of $ 395 89, due before the guarantee, as given in evidence by the plaintiff. Which opinion the court refused to give; but directed the jury, that although no express application [**10]  of the money was made by Lewis & Co. or the defendant, yet the jury were at liberty to infer from the evidence that the payments made by the defendant were applied and intended to be made in payment of his guarantee to the defendant; and that unless they should find, that there was an application of the money by the defendant, at the time of the payment, either expressed or implied, that then the plaintiff had a right to apply the payments. The plaintiff excepted.

7. The plaintiff's fourth bill of exceptions. The plaintiff having given in evidence that he was one of the firm in which himself, and one Henry and one Appleton, were the others, further gave in evidence, that said firm was carried on under the name of M. P. Mitchell alone, (the plaintiff in this cause,) and that all the books of said firm, checks drawn by the firm, and notes of sale by the firm, they being auctioneers, were all signed in the name of M. P. Mitchell alone. He further gave in evidence, that said firm trading under said name of M. P. Mitchell, did, on the 25th of October 1820, sell to Lewis & Co. the persons mentioned in the prior bills of exceptions, merchandize to the amount of $ 395 89. And also offered [**11]  in evidence the guaranty of the defendant set forth in the prior bills of exceptions; and also that in consequence of the said guaranty the plaintiff, as one of said firm, sold to Austin the agent of Lewis & Co. the persons named in the said guaranty, goods and merchandize, to the amount of $ 552 97 more. The defendant then offered in evidence the receipts stated in the prior bills of exceptions, and also, the letter from the plaintiff to him. The defendant, in addition to the evidence offered by him in the former bills of exceptions, also proved that the said Charles H. Appleton and William Henry, were active partners with the said co-partnership concern, carried on as aforesaid under the firm of M. P. Mitchell, and that the said Appleton & Henry, were in the constant habit of attending to the business of said firm, equally with the plaintiff. The plaintiff then prayed the court to direct the jury, that upon the evidence offered by him in this and the prior bills of exceptions, he was entitled to recover. Which opinion the court refused to give. The plaintiff excepted; and the verdict and judgment being against him, he appealed to this court.  

DISPOSITION:
JUDGMENT REVERSED, AND PROCEDENDO AWARDED.  [**12]  

HEADNOTES:

Where one is indebted in several sums, and is about to make a part payment, he has an undoubted right to apply that payment, to either the one or the other of those claims, as he thinks proper; and the creditor is bound to apply the payment, as directed by his debtor.

Although a debtor may not give an express direction at the time of the payment, to which, of several debts, a payment made by him shall be appropriated, yet a direction may be implied from circumstances; but if no application has been made by the debtor, either express, or implied, then the creditor may apply it.

A copy of a letter addressed by a creditor to his debtor, contained in the letter-book of the former, advising the debtor that he had drawn on him for the amount of a particular purchase, is not evidence for such creditor in an action against a guarantee of the debtor, to establish that a payment shortly after received from such debtor, who was indebted on several accounts, was made in discharge of such purchase; though the draft itself, (or evidence of its contents if lost,) accompanied by a letter from the debtor to the creditor, regretting his inability to meet the draft, and promising speedy payment of that demand, followed by a payment a few days after the date of such letter, is evidence to show that it was made in discharge of that particular claim.

The letter of a debtor (or his acknowledged general agent,) to his creditor, directing him to which of two debts, a payment he was about to make him should be applied, is the best evidence, to show on what account such payment was received by the creditor.

Such letter in an action by the creditor, against the guarantee of the debtor for one of his debts. where several were due, is not considered as merely the declarations of a third person, but it is an act by the party, who had the legal right to make the application of the payment, directing in what manner it should be made.

It is a general rule, that all the parties composing a firm must be named as plaintiffs, and an omission to name them, may be taken advantage of on non assumpsit; but there is an exception to this rule, for where there are dormant partners, it is not necessary they should be named in the writ.

In the legal acceptation of the term dormant, as applied to partners in trade, every partner is considered dormant, unless his name is mentioned in the firm, or embraced under general terms as the name of one of the firm and company.

Where goods were sold to L, and D agreed to become answerable for them as a guarantee, upon L's default to pay for them at a fixed day, in an action against D on his guaranty, it is essential that the declaration should contain an express averment, that the debt was not paid by L at the expiration of the time limited for payment; for until there was default on the part of L, no responsibility attached upon D.

To recover upon an insimul computassent, in such case, it must appear there was an accounting between the parties after L's debt was due and owing. 

COUNSEL:
R. Johnson, for the Appellant. It will be contended, in behalf of the appellant, that the judgment of the court below should be reversed on the following grounds:

1. Upon the plaintiff's first bill of exceptions. That the court erred in not permitting the plaintiff to read in evidence to the jury the letter stated in this exception, of the 8th of May 1821, addressed to the plaintiff by the acknowledged agent of Lewis & Co. the same being competent evidence to go to the jury to show on what account the payments made by the defendant to the plaintiff, for Lewis & Co. were to be applied.

2. On the plaintiff's second bill of exceptions. That the evidence offered in this exception by the plaintiff, of the last draft drawn by him on Lewis & Co. dated the 7th of May 1821, for $ 395 89, and the letter from the agent of Lewis & Co. of the 8th of May 1821, it being the letter set forth in the plaintiff's first bill of exceptions, were competent evidence to go to the jury, for the purpose of showing in what manner the first payment made by the defendant on the 10th of May 1821, of $ 400, was to be applied.

3. On the plaintiff's third bill of exceptions. That there being no [**13]  evidence to show that the defendant, or Lewis & Co. had directed the two payments of the 10th of May and 16th of June 1821, to be applied to the discharge of the debt due by Lewis & Co. to the plaintiff, which the defendant had guaranteed, the court erred in refusing the plaintiff's prayer, that he had a right to apply such payments in the first place, that being a prior debt, to the discharge of the debt of $ 395 89.

4. On the plaintiff's fourth bill of exceptions. The court below erred in not directing the jury, that the plaintiff was entitled to recover; because it was competent for him to support the action in his own name, the other parties who were concerned with him being in point of law, dormant partners, and because there was no evidence to show that the payments made through the defendant for Lewis & Co. were, either by them, or the defendant, directed to be applied to the discharge of the portion of the debt due by Lewis & Co. which the defendant had guaranteed; and in the absence of such evidence said payment should have been first applied to that debt due by Lewis & Co. which was prior in point of date.

On the first and second points, he cited 2 Stark. Evid.  [**14]  62. 3 Stark. Evid. 1620. Key v Parnham, 6 Harr. & Johns. 418. Wysham v Gray, 7 Harr. & Johns. 409. Drummond v Prestman, 12 Wheat. 515. Taney v Kemp, 4 Harr. & Johns. 348. 3 Stark. Evid. 1091.

The third point was abandoned.

On the fourth point, he cited, 1. As to the application of the payment. Gwinn v Whitaker, 1 Harr. & Johns. 754. 3 Stark. Evid. 1092. Plomer v Long, 2 Serg. & Lowb. 334. (1 Stark. Rep. 153.) Allstan's Adm'r. v Contee's Ex'r. 4 Harr. & Johns. 351. Fowke v Bowie, 4 Harr. & Johns. 566.

2. As to dormant partners, he cited Cabell v Vaughan, 1 Saund. 291. g. (4.) 1 Chitty's Plead. 8. Gow on Part. 153, 17. Leveck v Shaftoe, 2 Esp. Rep. 469. Hall v Smith, 8 Serg. & Lowb. 112. Lord Galway v Matthew, 1 Campb. 403. Guidon v Robson, 2 Campb. 302. Lloyd v Archbowle, 2 Taunt. 324.

Williams, (District-Attorney of U. S.) and Meredith, for the Appellee.

On the first and second points, they cited 1 Phill. Evid. 54. 3 Stark. Evid. 1386, (and note.) Evans v Beattie, 5 Esp. Rep. 26. Bacon v Chesney, 1 Stark. Rep. 192. Drummond v Prestman, 12 Wheat. 515. Newson's Adm'r. v Douglass, 7 Harr. & Johns. 417. 1 Stark. Evid. 47. Dunn v Slee, 3 Serg. & Lowb. 140. Bateman [**15]  v The City Bank of Baltimore, 7 Harr. & Johns. 104. Taney v Kemp, 4 Harr. & Johns. 348.

On the fourth point. 1st. As to the application of payments, they cited Tayloe v Sandiford, 7 Wheat. 20. 3 Stark. Evid. 1091, 1093, (note.) 2d. As to the dormant partners, they cited Gow on Part. 165. 3 Stark. Evid. 1070. Teed v Elworthy, 14 East, 210. Dob v Halsey, 16 Johns. Rep. 34. Bryden v Taylor, 2 Harr. & Johns. 396.

The appellee's counsel took an objection to the declaration; because there was no demand averred to have been made of the defendant, and of his refusal, &c. and that there should be proof to support such demand and refusal. They cited M'Iver v Richardson, 1 Maule & Selw. 557. Morris v Cleasby, 4 Maule & Selw. 574. Bank of New-York v Livingston, 2 Johns. Cas. 409. Grant v Ridsdale, 2 Harr. & Johns. 186. 1 Chitty's Plead. 344.

R. Johnson, in reply. On the first and second points, he referred to Owings & Piet v Low, 7 Harr. & Johns. 124. Riddle v Moss, 7 Cranch, 206. 1 Phill. Evid. 54. Ilderton v Atkinson, 7 T. R. 480. Birt v Kershaw, 2 East, 458. 2 Stark. Evid. 300, (and note.) Kahl v Jansen, 4 Taunt. 567. Townsend v Downing, 14 East, 567. Keightley v Birch, 3 Campb.  [**16]  523.

On the fourth point, he referred to Tayloe v Sandiford, 7 Wheat. 20. Teed v Elworthy, 14 East, 209, 210. Coursey v Baker, 7 Harr. & Johns. 28.

With respect to the alleged defect in the declaration, he cited 1 Chitty's Plead. 309.

Curia adv. vult.  

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

OPINIONBY:
MARTIN 

OPINION:

 [*168]  MARTIN, J. at this term delivered the opinion of the Court. In the trial of this cause, three bills of exceptions were taken by the defendant to opinions given by the court below, and four by the plaintiff. As the defendant obtained a verdict, and no appeal has been prosecuted by him, it will only be necessary to consider those presented to us by the plaintiff.
This is an action of assumpsit, instituted by Mitchell, upon an agreement in writing, by which Dall engaged, if Mitchell would furnish goods to Lewis & Co. through their agent, Archibald Austin, upon a credit of four months, he would guaranty the payment for them. This letter of guaranty was dated the 3d of January 1821. Evidence was given to the jury, that goods to the amount of $ 552 97, were delivered in pursuance [**17]  

 [*169]  of this agreement; and also that Lewis & Co. were indebted to Mitchell in another sum of $ 395 89 for goods sold to them on the 25th of October 1820. Dall, to discharge himself from the claim of Mitchell, gave in evidence to the jury, two receipts signed by Mitchell, the first dated the 10th of May 1821, and the second, on the 16th of June in the same year, each for the sum of $ 400; and also a letter from Mitchell to Dall, dated the 5th of May 1821, advising him, that the amount for which he had become responsible for Lewis & Co. was then due. Mitchell, to prove the money mentioned in the receipt of the 10th of May 1821, ought to be applied to the discharge of the debt due by Lewis & Co. on the 25th of October 1820, and not to that for which Dall was responsible, offered to give in evidence a copy of a letter, alleged to have been written by him to Lewis & Co. which copy was found in a book kept for the purpose of copying letters by the firm of which Mitchell was a partner; and who offered to prove, that he (Mitchell,) drew a draft on Lewis & Co. dated the 7th of May 1821, at 3 days sight, for $ 395 89, which [**18]  was not paid, but was returned to him; which draft has been lost, and cannot be found; and in connexion with the said draft, offered to read in evidence the letter found in the record, written by Arshibald Austin, as the agent of Lewis & Co. dated May 8th 1821; but the court refused to permit this evidence to go to the jury. And whether this procedure was correct, is the only question presented to us by the first and second bills of exceptions, on the part of the plaintiff.
We agree in opinion with Baltimore county court, that the copy of the letter found in the letter-book of the plaintiff, was not legal evidence for him in the cause, and that it was properly rejected; but we must dissent from them, so far as it relates to the evidence offered to show a draft was drawn on Lewis & Co. and the letter written by Austin, the acknowledged agent of that firm.
If the draft, drawn by Mitchell on Lewis & Co. had been in his possession, and he had it in his power to produce it, it certainly ought to have been produced; but when it was proved to have been lost, and could not be found, he ought to have been permitted to have given evidence of its contents.  [**19]  

 [*170]  It is admitted in the record, that Austin was the agent of Lewis & Co. and it has been decided by this court, that where an agency is sufficiently established, the acts and declarations of the agent, within the scope of his authority, are to be considered as the acts and declarations of the principal, of which evidence may be given as if they had been done and made by the principal himself. City Bank of Baltimore v Bateman, 7 H. & J. 104. Lewis & Co. were indebted to Mitchell in two several sums of money, and were about to make a part payment; they had an undoubted right to apply that payment to either the one or the other of those claims, as they thought proper, and Mitchell was bound to apply it, as directed by his debtor. On the 8th of May 1821, Lewis & Co. write to Mitchell, (for we consider the letter by Austin, their acknowledged agent, as their letter,) in substance, that they were about to remit to him a sum of money for the purpose of discharging the debt of $ 395 89, for which a draft had been made on them. The money was received by Mitchell, and the question before the jury was, whether Lewis & Co. had [**20]  given any directions to which debt this money should be applied? We think the letter was not only legal, but the best evidence, for the purpose for which it was offered. It was the direction of the debtor to the creditor, in writing, how this payment was to be applied. It was the creditor's authority for making the application, and after the receipt of this letter, he could not have rightfully applied it in any other manner. It has been contended that Lewis and Austin were legal witnesses in this cause, and ought to have been produced by the plaintiff. Admit they were competent witnesses, why was it necessary that he should have produced them? Was it to prove that Austin was the agent of Lewis & Co.? That fact was admitted by the defendant, in the trial of the cause. Was it to prove that Austin wrote a letter to the plaintiff, as the accredited agent of Lewis & Co.? That fact was also admitted by the defendant; and if they were called on to prove the manner they had directed this payment to be applied, the moment they mentioned this direction was given in a letter, in the possession of the plaintiff, they would have been stopped from giving in evidence [**21]  the contents of that letter, and the letter itself would have been demanded of the plaintiff.

 [*171]  The defendant having admitted that Austin was the agent of Lewis & Co. and that he had, in that character, directed the application of the payment, in a letter to the plaintiff, the letter itself was the only legal evidence to show what that direction was.
It was not merely the declarations of a third person, as was ingeniously urged in the argument, but it is an act done by the party who had the legal right to make the application of the payment, directing in what manner it should be made.
The third bill of exceptions was not relied on by the counsel for the appellant; we shall therefore pass it without notice; the law submitted to the court in that exception, will, however, necessarily demand our attention in examining the fourth bill of exceptions.
The fourth bill of exceptions was a general prayer on the part of the plaintiff, that if the jury believed the evidence offered by him, they must find a verdict in his favour. This prayer was refused by the court.
The first question to be disposed of under this exception is, whether  [**22]  Mitchell could sustain the action in his own name, and without joining his partners, Appleton & Henry, in the writ?
It is a general rule of law, that all the parties composing a firm must be named as plaintiffs, and an omission to name them may be taken advantage of, on non assumpsit. Gow on Partnership, 164, 167, 153; but there is an exception to this rule, for where the partners are dormant, it is not necessary they should be named in the writ. Gow, 167, 153. Lloyd v Archbowle, 2 Taunt. (Eng.) 324. Leveck & Pollard v Shaftoe, 2 Esp. 468. 1 Chitty on Pleading, 8.
What then constitutes a dormant partner, is the point upon which this part of the cause depends. In common parlance it appears a solecism in terms to say, that he who was actively engaged in the business, should be dormant, yet in the strict legal acceptation of the term, we are led to believe, every partner is considered dormant, unless his name is mentioned in the firm, or embraced under general terms, as the name of one of the firm and company. We are brought to this conclusion, not 

 [*172]  only by the definitions contained in elementary authors, but by [**23]  adjudged cases upon this subject.
Gow, in his Treatise of Partnership, 12, 13, describes the several kind of partners. He says, "An actual ostensible partner, is a party who not only participates in the profits, and contributes to the losses, but who appears and exhibits himself to the world as a person connected with a partnership, and as forming a component member of the firm. A dormant partner is likewise a participant in the profits of the trade, but his name being suppressed and concealed from the firm, his interest is consequently not apparent." The same distinction is taken in Watson on Partnership, 34, 46. He says, "Sometimes all the partners in trade do not appear ostensibly to the world, though they share in the profits and loss, &c. Where they do not suffer their names to appear in the co-partnership firm, but at the same time receive their share of the profits, and bear their risk of loss, they are styled dormant partners." In the case of Leveck v Shaftoe, 2 Esp. 468, Lord Kenyon held, "that if a person had been a partner, and his name in the firm, and he afterwards withdrew his name, but continued to receive part of the profits;  [**24]  though such person still continued liable to all the demands against the partnership on the ground of the profits he derived; he would not allow persons who dealt with the firm, without his name appearing in it, to avail themselves of the objection of such partner's not having joined in the action, for the purpose of a nonsuit." See also the case of Lloyd v Archbowle, 2 Taunt. (Eng.) 324. Lucas and others v De la Cour, 1 Maule & S. 249; and Bryden v Taylor, 2 H. & J. 395.
In this case it appeared the firm was carried on under the name of Mitchell alone; that all the books of the said firm, checks drawn, and notices of sale, were signed in his name; and that every part of the transaction, that gave birth to this suit, the letter of guaranty, and other evidence offered, was addressed to him alone, without reference to his partners. They were therefore dormant partners, and it was not necessary to name them in the writ.
The next question is the application of the payments made by Lewis & Co. And in deciding this question, we shall confine 

 [*173]  our remarks solely to the case as it appears in the record, without [**25]  intending to lay down a rule of law, that will apply to every case that may possibly arise. We adopt the law, as declared by the court in the third bill of exceptions, as correct in this case. That it is the undoubted right of the debtor to direct the appropriation of money paid by him to any debt he may think proper. And although he may not give an express direction, at the time of the payment, such direction may be implied from circumstances; but if no application has been made by the debtor, either express or implied, then the creditor may apply it.
Many cases might be produced to sustain this doctrine; we deem it necessary to refer only to a few. In Tayloe v Sandiford, 7 Wheat. 13, Chief Justice Marshall, in delivering the opinion of the court, says "a person owing money under distinct contracts, has undoubtedly a right to apply his payments to which ever debt he may choose; and although prudence might suggest an express direction of the application of his payments, at the time of their being made, yet there may be cases in which this power would be completely exercised without any express direction given at the time. A direction may be evidenced [**26]  by circumstances as well as by words. A payment may be attended by circumstances which demonstrate its application as completely as words could demonstrate it." In Newmarch v Clay & others, 14 East 242, Lord Ellenborough said, "that there might be a special application of a payment made arising out of the nature of the transaction, though not expressed at the time in terms by the party making it." And it was admitted in the argument of that cause, as a general rule, and many cases cited in support of it, that if the debtor, who owes money on several accounts, do not apply a part payment when made, to a particular debt, but pay in the money generally, the creditor has a right to apply it to any part of his demand which he pleases. In the case of The Mayor and Commonalty of Alexandria v Patten & others, 8 U.S. 317, Chief Justice Marshall declares it to be a clear principle of law, "that a person owing money on two several accounts, as upon bond and simple contract, may elect to make his payments to which account he pleases; but if he fails to make the application, the election passes from him to the creditor."

 [*174]  Objections have been taken in  [**27]  this court, to the sufficiency of the declaration filed in the cause, which we think justified the court below in refusing the prayer of the plaintiff in the fourth bill of exceptions. The agreement, which is the foundation of this suit, is susceptible of but one rational construction. That Lewis & Co. being desirous to purchase goods, &c. of Mitchell, through the agency of Archibald Austin, Dall engages, if the goods are furnished to Lewis & Co. upon a credit of four months, and they do not pay for them at the expiration of that time, that he will do it. The goods then are sold to Lewis & Co. They are the original debtors, and upon their default, and their default alone to pay, Dall becomes answerable. Austin has nothing to do in the transaction, but merely as an agent for Lewis & Co. No sale is made to him individually, nor is he bound to pay for the goods. It is essential, therefore, that the declaration should contain an express averment, that the money was not paid by Lewis & Co. at the expiration of the time limited for payment; for until there was default on the part of Lewis & Co. no responsibility attached upon Dall.
The first  [**28]   count, instead of stating the money had not been paid by Lewis & Co. (the condition upon which Dall had agreed to pay,) says Austin did not pay it. Austin was not bound to pay it. He was not the debtor, nor did Dall assume any responsibility upon the nonpayment by Austin.
The declaration, to be effective, ought to have averred the nonpayment by Lewis & Co. for it by no means follows, that although not paid by Austin, that Lewis & Co. may not have discharged the debt.
The same objection applies to the second count. It is stated that Austin, and not Lewis & Co. did not pay. The third count has no reference to the guaranty; it charges Dall with goods, &c. money lent, &c. furnished to him on his own account, and for his own use, and not as being charged with a debt, upon the default of another to pay it. The fourth count is supposed to be sufficient; because on default of Lewis & Co. to pay, it was unnecessary to set out the special agreement in the declaration, but that it might be given in evidence on the general count. If this position were correct, it would not support the count. If the rule relied on could be applied [**29]  to this case, 

 [*175]  still it was necessary to set out the transaction as it appeared in evidence--that the goods, &c. were sold to Lewis & Co. and Dall promised to pay for them. But in this count, Lewis & Co. are entirely lost sight of. It is stated, not as a debt contracted by them, but by Archibald Austin; and surely evidence that Dall promised to pay the debt of Lewis & Co. will not make him answerable for a debt contracted by Austin on his own account. The fifth count is on an insimul computassent; and whether this can be sustained, must depend upon the evidence in the cause. The responsibility of Dall under the guaranty, did not attach until default was made by Lewis & Co. to pay, nor was there any debt due and owing by him until the expiration of the time limited for payment. His undertaking was collateral and conditional, and to make him answerable upon an insimul computassent, it must appear there was an accounting between the parties, after the debt was due and owing; and such is the express language of the declaration.
This is not like a debt between two persons, on their own account, with a future time for payment; there [**30]  the debt is due, when the goods are delivered. But in this case, as before observed, the assumption is conditional; there is no debt before default, nor is there any legal demand on Dall, until that time. The evidence offered by the plaintiff, to support this count, was a memorandum signed by Dall, admitting the amount of the goods delivered under the guaranty; but that writing has no date. If it should be found by the jury, that the memorandum was signed after the time limited for payment, it may be sufficient to charge Dall on the insimul computassent; if before, it could only be evidence to show the amount of the claim, on a count founded on the special agreement.
An objection was also made to the declaration, that it did not contain an averment, that a demand had been made on Lewis & Co. for payment, before this suit was brought. Having declared all the counts founded on the guaranty insufficient, it is unnecessary to consider this objection.
JUDGMENT REVERSED, AND PROCEDENDO AWARDED.  

10 of 44 DOCUMENTS 

BROWN vs. PURVIANCE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

2 H. & G. 316; 1828 Md. LEXIS 26 

June, 1827, Argued 

June, 1828, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court. This was an action of trover to recover the value of a stern-boat, brought by the appellee against the appellant. The general issue was pleaded.

At the trial the plaintiff, (the now appellee,) offered in evidence, that about the 1st of September 1819, he was possessed, as owner of the brig called Strong, then lying at Jackson's wharf in the city of Baltimore, and that there was a stern-boat belonging to the said brig worth $ 60; and that the defendant, (now appellant,) then was the harbour-master of that part of the port of Baltimore where the said brig lay at her moorings; that the board of health of the city of Baltimore, acting within the scope of their authority, ordered all vessels lying at the different wharfs in that part of the port of Baltimore to be moved into the stream; and that it was the duty of the defendant or harbour-master to promulgate the orders of the board of health, and to have them executed. That the board of health did order the said brig to be moved from Jackson's wharf into the stream, and that the defendant did make the said order known. The plaintiff further offered in evidence, that there was not at that time any [**2]  officers or crew attached to the said brig, and that on the 10th of September 1819, one Bragger did move the said brig into the stream. And that Bragger, and his assistants, returned to another part of the harbour in the boat, and tied her there, and that she was afterwards lost. The plaintiff also offered in evidence, that previous to the institution of this suit, he had demanded the return of the said boat from the defendant; and that the said Bragger, and his assistants, were employed by the defendant, as harbour-master, for the purpose of executing the orders of the board of health; and that in the removal of the said brig and boat as aforesaid, the said Bragger, and his assistants, acted as agents of the defendant, in his capacity of harbour-master. The plaintiff further offered in evidence, that after the said brig had been moored in the stream about two weeks, the plaintiff took possession of her, but that the boat was missing from the time that she was left by the said Bragger, and his assistants, as aforesaid, and has not since been found. The defendant then prayed the opinion and direction of the court to the jury, that upon the facts so offered in evidence, the plaintiff [**3]  was not entitled to recover. Which prayer and direction the Court, [Archer, Ch. J. and Hanson and Ward, A. J.] refused to give; but were of opinion, and so directed the jury, that upon the evidence, if they believed the same, the plaintiff was entitled to recover. The defendant excepted; and the verdict and judgment being against him, he appealed to this court.  

DISPOSITION:
JUDGMENT REVERSED.  

HEADNOTES:

A master is answerable for all injuries arising from the negligence, or unskilfulness of his servant in executing duties assigned him; but when he abandons his duty, and wilfully becomes a wrong-doer, the master is exempt from all responsibility for such wrongful acts.

B, the harbour-master of the city of Baltimore, acting in obedience to a lawful order of the board of health of that city, ordered a vessel, belonging to the plaintiff, to be removed from a wharf, and moored in the stream. He employed C, to perform that duty, who having finished it, with his associates, hired for the purpose aforesaid, returned from the vessel to the shore, in a boat belonging to her, which they there abandoned, and was lost to the plaintiff. The boat was demanded of B by the plaintiff, and he having omitted to return her, an action of trover was brought against him--Held, that from the time the vessel was moored in the stream, C ceased to be B's agent, and that for no acts of his or their consequences after that period was he responsible.  

COUNSEL:
Scott, for the Appellant, contended, 1. That there was no such possession of the stern-boat mentioned in the declaration and bill of exceptions shown in the defendant below, as will sustain this action. 2. That if there was any such possession of the said boat by any person, as could sustain and be the foundation of an action of trover, that possession was in Bragger, and not in the defendant. 3. That the defendant, acting within the scope of his lawful authority, the consequential loss of the boat as to him, was damnum absque injuria. 4. That Bragger had no authority from the defendant, after mooring the brig in the stream, for leaving the boat at the wharf. 5. That the defendant was not responsible for any act of Bragger beyond his authority; but that Bragger himself must answer for it. He cited [**4]  2 Wheat. Selw. N. P. 1050, 1059, 1060, 1068, 1073, 1074, 1075, 1076. Mair v Glennis, 4 Maule & Selw. 250. 2 Phill. Evid. 117, 121.

Williams, (District Attorney of U. S.) for the Appellee.

Curia adv. vult.  

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

OPINIONBY:
DORSEY 

OPINION:

 [*318]  DORSEY, J. at this term, delivered the opinion of the Court. Before adverting to the question of law which arises in this case, it is necessary to determine, whether the act complained of be the result of negligence or unskilfulness in the servant of the appellant, in performing the task imposed on him by his employer, or be the wilful outrage of the servant, as a wrong-doer? That it was the latter, is, we think, clearly established by the facts stated in the bill of exceptions. Brown, the harbour-master, 

 [*319]  acting in obedience to a lawful order of the board of health of the city of Baltimore, employs Bragger, as his servant or agent, to move the brig into the stream. In this he acted in the usual course of his duty; the services of the harbour-master in person, being in such cases out of the question. Bragger removes the vessel into the [**5]  stream, (where she appears to have been safely moored;) from that moment, functus officio, he ceased to be the agent of Brown. For no acts of his, or their consequences, after that period, can Brown, upon any principle of law, be made liable. As well might an action be instituted against him, for the forcible or unauthorised seizure, by Bragger, of the boat of any third person, before the removal of the brig, but for the purpose of accomplishing that object, as it may be on the present occasion; or, with as much propriety, might Brown be charged for the injury done to the appellee, if Bragger and his associates, after mooring the brig in the stream, had turned round and set her on fire, or plundered her of her tackle, apparel and furniture. But suppose the brig had not been moored in the stream, and Bragger and his crew had not only run off with the boat, but the brig also; would it be pretended that Brown could be made responsible for such an outrage? If he could, from a mere ministerial officer of a corporation, you must convert him into a common carrier, amenable for all accidents, save "the acts of God and the king's enemies."
The nature of the [**6]  liability, to which a master is subjected for the acts of his servant, is so fully and satisfactorily settled in the case of M'Manus v Crickett, 1 East 106, that courts of justice should rarely be troubled with cases of this kind. The rule is simply this--the master is answerable for all injuries arising from the negligence or unskilfulness of his servant in executing duties assigned him; but when he abandons his duty, and wilfully becomes a wrong-doer, the master is exempt from all responsibility for such wrongful acts.
JUDGMENT REVERSED.  

11 of 44 DOCUMENTS 

WIRGMAN'S Adm'rs vs. MACTIER.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

1 G. & J. 150; 1829 Md. LEXIS 16 

December, 1829, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court. This is the same case which was before this court at December Term, 1819, (4 Harr. & Johns. 558,) on appeal from Baltimore county, wherein the Judgment was reversed, and the record remitted under a procedendo.

1. At the second trial, the same evidence was offered as on the first trial, and which is set out in the bill of exceptions then taken, [see 4 Harr. & Johns. 568] except that stated in page 574, lines 5, 6, 7, 8 and 9, from the bottom, as to the understanding of the merchants of Baltimore, &c. Also that of H. Campbell, in page 575, lines 5, &c. and substituting that of James Dooley as hereafter mentioned. Also omitting in page 575, lines 3, 4, 5, 6 and 7 from the bottom. The defendants in order to prove that Peter Wirgman was ordered to leave Denmark by the Collector of the Customs at Flekkefiord without delay, read in evidence the deposition of James Dooley, taken by consent. He deposed "that he was the second officer on board the ship William Wilson, Peter Wirgman, commander, on a voyage to Europe, in the year 1810. In the month of October or November of the same year, while the said ship was lying at Flekkefiord, in Norway, and before [**2]  the Admiralty proceedings against said ship were terminated, the deponent was present at conversations between E. Thomman, supercargo of said ship, and said Peter Wirgman, in which the said Thomman united with the said Wirgman in determining that in the event of the liberation of said ship and cargo, they would proceed with the same to the port of Hull, in England. That subsequent to the above conversation, and while the said ship lay at Flekkefiord, as aforesaid, the said Thomman, in the absence of Captain Wirgman, asked this deponent, and Walter Pratt, first officer of said ship, what time it would require to get said ship in readiness for sea; and then declared his determination to proceed with said ship and cargo, in the event of their liberation, to Hull, as aforesaid. That a day or two afterwards the said Thomman left Flekkefiord and proceeded, as this deponent understood, to Christiansand, and this deponent did not see him afterwards. This deponent further saith, that sometime in the latter end of November, the said ship left Flekkefiord, and dropped down to the Albernes, and remained there until about the 10th day of December, when Captain Wirgman came on board from Flekkefiord,  [**3]  accompanied by a pilot, who ordered the ship to be got under weigh; and declared, in answer to a question put to him by this deponent, why he meant to proceed with the ship to sea that night, that he had received an order to that effect from inspector Lassen, who was the Collector or Custom-house Officer at Flekkefiord. This deponent further saith, that two or three days before the said ship proceeded to sea, the said Wirgman sent an express to Fahareund, to hurry the said Thomman on to Albernes, to join the said ship. That the said Peter Wirgman expressed an anxiety that the said Thomman should arrive at Albernes before the said ship proceeded to sea. That after the said ship had got down to the harbours mouth, the night being very tempestuous and stormy, Captain Wirgman prevailed upon the pilot to return with said ship to her former anchorage, alleging the weather as an excuse, but in reality, as this deponent understood, to afford further time for the said Thomman to join the ship; but that the said ship, after getting within a quarter of a mile of her former anchorage, was struck aback and compelled to proceed to sea; that the said ship proceeded to Hull, and that on her passage,  [**4]  this deponent heard Captain Wirgman frequently express a wish that said Thomman had joined the said ship at Albernes, as the said Thomman had promised."

The defendants further offered evidence that the cargo of the plaintiff was colonial produce; and to prove that no American vessel, laden with colonial produce, would have been permitted at the time the said ship William Wilson left Norway, as aforesaid, to land the said produce in any port in the Baltic or North Sea, unless the cargo of such vessel was accompanied by proper certificates, shewing the origin thereof, and that the same was not the produce of Great Britain, or any of her colonies, read in evidence, by consent of the plaintiff, from the British Register, the American Register, the American state papers, and the Federal Gazette newspaper, published in Baltimore, in the year 1810, certain orders, decrees and municipal regulations of France, Denmark, Prussia, Russia, Austria and Sweden, which it was agreed shall be read in the argument of this cause before the Court of Appeals. The defendants also offered in evidence, that Wirgman, after he left Flekkefiord, as aforesaid, was without further means, or opportunity of [**5]  communicating with the said Parish & Co. until his arrival at Hull, as aforesaid.

The plaintiff then offered to prove by John Donnell, a witness, sworn at the bar, that a certain ship or vessel, called the Eleanor, belonging to the said Donnell, with a cargo consisting of colonial produce, had sailed from Baltimore, in the year 1810, and proceeded to Constantinople, a port on the continent of Europe, situate on the Dardanelles, where she had landed and delivered her cargo in safety, without any molestation by the government of that country; and also offered in evidence by the same witness, that in the year 1810, a vessel belonging to him proceeded to the port of Salonica, on the continent of Europe, on the Morea, loaded with colonial produce; and also offered evidence that the port of Gibraltar, on the continent of Europe, was, in the year 1810, open to American ships, loaded with colonial produce. To the admissibility of which evidence the defendants objected, because the said evidence had no relation to the matter in controversy in this suit, between the plaintiff and defendants; but the court [Archer, Ch. J. and Hanson and Ward, A. J.] overruled the said objection, and admitted [**6]  the said evidence; being of opinion and so directed the jury, that the contract of the said Charles & Peter Wirgman with the plaintiff, was not limited to the ports of the continent in the North Sea or Raltic, but extended to every port of the continent of Europe whatsoever. To which opinion and direction and the admission of said evidence, the defendants excepted.

2. The defendants then moved the court to direct the jury, that if they shall believe that agreeably to the orders and decrees of France, Prussia, Russia, Sweden, and Denmark, as produced in evidence in this cause, all uncertificated colonial produce was prohibited from entry into the ports of those respective countries, and that the captain of the ship William Wilson was unprovided with a certificate of origin for that part of the cargo which belonged to the plaintiff, and which consisted of colonial produce; that then the captain was justified in not attempting to enter any of the ports of the countries before mentioned, to land the said cargo, and that in proceeding to Hull for that purpose he fulfilled the contract between the plaintiff and the ship owners, and entitled them to freight according to said contract,  [**7]  and consequently that the plaintiff cannot recover in this action. Which direction the court refused to give. The defendants excepted.

3. The defendants also moved the court to direct the jury, that if from a consideration of all the circumstances as given in evidence in this cause, they shall be of opinion, that the defendants are entitled in equity and good conscience, to retain the money by them received, that then the plaintiff is not entitled to recover on the first count of his declaration. Which direction the court refused to give. The defendants excepted.

4. The defendants further moved the court to direct the jury, that if they shall be of opinion that all the ports of the continent of Europe, on the North Sea and in the Baltic, were closed by municipal regulations against the admission of a vessel and cargo in the predicament of the William Wilson at the time of her liberation by the Court of Admiralty at Christiansand, and that in these circumstances, the William Wilson was expelled from the ports of Norway by the orders of the Danish government so suddenly as not to allow time for a further correspondence between Peter Wirgman and David Parish & Co. of Hamburg,  [**8]  that by these events, and by force of the letter of instructions from the plaintiff to Peter Wirgman, of the 8th day of May, 1810, the said Wirgman became the special agent of the plaintiff, and that being such special agent if he proceeded to Hull and then accepted that part of the cargo which belonged to the plaintiff in satisfaction of the contract, he the plaintiff is not entitled to recover in this action. Which direction the court refused to give. The defendants excepted; and the verdict and judgment being against them, they appealed to this court.  

DISPOSITION:
JUDGMENT REVERSED AND PROCENDO AWARDED.  

HEADNOTES:

THE owner of a ship after she was laden at Baltimore, on the 14th May, 1810, agreed with the shippers of the cargo, in writing, that their goods were "to be landed in a permitted port on the continent of Europe, (meaning that they were not to be landed at the Island of Sylt) before the freight should be earned, but should the whole of the continent be shut, the freight, with an addition as arbitrators might determine, would be earned, should the property be landed in England, agreeably to the custom of the country." On the 25th April, 1810, a charter party had been entered into for the same ship, by which the owner covenanted to proceed with his ship from Baltimore, north about, for the Island of Sylt, thence to Hamburg or Bremen, if open to American ships, if not, the cargo to be landed at Sylt if permitted, and in case of refusal there, thence to such permitted port in the North Sea or Baltic, as the master and supercargo might direct; and should the Baltic be closed against the admission of American vessels, then to such other port as the master and supercargo might again direct. The freight was to be paid agreeably to the bills of lading, provided the cargo was discharged at a port in the North Sea; but if delivered at any port in the Baltic, an advance in the freight was covenanted for; and should the Baltic be shut, a further advance in the freight to be settled by arbitration. On the 8th May, 1810, a bill of lading was also signed for the plaintiff's goods, which stated the ship to be bound from Baltimore for Sylt, and a permitted port in the North Sea or Baltic, the goods to be delivered at the aforesaid permitted port, unto P of Hamburg, who was not the supercargo of the ship. In an action where the plaintiff claimed under these contracts, he offered testimony to establish that certain ports in Europe, not on the North Sea or Baltic, were open to American vessels, but the court held that looking to the historical facts and occurrences of the time, it was manifest that the voyage was undertaken, and the charter party, bill of lading, and agreement entered into, with a view to the then political state of affairs in Europe, and should be construed with a view thereto--that the permitted port on the continent of Europe, in which, the goods were by the agreement to be landed, before freight could be earned, was intended to be a permitted port in the North Sea or the Baltic; and also that all the said instruments must be construed in connection with each other, and the general terms in the agreement of the 14th May, restricted to the North Sea and Baltic; and therefore rejected the testimony offered, as inadmissible and irrelevant.

Whether ship owners are entitled in equity and good conscience, to retain money received on account of freight, is clearly a question not to be left to the jury; but proper only to be decided by the court, under the circumstances of each case.

So where in an action of assumpsit brought by the owner of merchandize shipped in the defendant's vessel, to recover a sum which the defendant had received and retained for freight, it appeared that the shipment was made under the charter party; bill of lading, and agreement above referred to, and that the master was furnished with instructions from the plaintiff, as follows, "on account of the unsettled state of affairs on the continent of Europe, I have thought proper to request my friends Messrs. P. & Co. of Hamburg, in the event of the cargo of the ship being denied entry at their port, to consult with you on the further destination of the ship, and the disposal of my interest on board. In case they have no friend at the port she may proceed for, you will please take charge of it, and advise with them what is best to be done for my interest. On your arrival off Sylt, should the situation of affairs be such as to prevent you from communicating with Messrs. P. & Co., in that case you will have to proceed with the cargo where you judge it will be most advantageous for all concerned, when I shall consider my part as entirely under your charge, &c." The ship sailed on her voyage, was captured before her arrival off Sylt, taken into a port in Norway, but ultimately released. The master, after the restoration of his ship and cargo, without consulting with the consignees about the further destination of the ship, or disposition of the plaintiff's property, although he had the means of communicating with them, proceeded with his ship to England, there delivered his cargo, and received (from the agents who sold the cargo,) as freight, the sum claimed in this action. HELD, he was not entitled to retain it.

Where by the municipal regulations of certain ports, a certificate of origin was necessary to the admission of certain merchandize there, a shipmaster having received such goods on board his ship, and signed a bill of lading for their delivery at one of such ports, cannot in the absence of evidence to shew it was the duty of the shipper to furnish such a certificate, set up the fact of that document not being on board his ship, as an excuse for not entering the port at which he had agreed to land the property entrusted to him; nor as a justification for his delivering it at another port, and thereby earn freight. 

COUNSEL:
Meredith for the appellants, contended: 1. On the first bill of exceptions, that the evidence offered by the appellee, was irrelevant and inadmissible; because, by the true construction of the contract, it looked for the destination of the cargo, to a permitted port in the North Sea, or Baltic, and not to a port, or ports on the continent, situated on any other sea.

2. That such being the true construction of the contract, and appellants having offered evidence, that agreeably to orders and decrees of France, Prussia, Russia, Sweden and Denmark, all uncertificated colonial produce [**9]  was prohibited from entry in the ports of those respective countries; and that the goods of the appellee, which consisted of colonial produce, were unaccompanied by a certificate of origin, the court erred in refusing to direct the jury, as stated in the second bill of exceptions, that if they believed said evidence, the captain was justified in not attempting to enter any of the ports of the countries before mentioned, to land the said cargo; and that in proceeding to Hull, for that purpose, he fulfilled the contract of affreightment, and entitled the owners to freight, and that consequently the appellee was not entitled to recover; because, by his own omission and negligence, he had prevented the appellants from proceeding to any of the said ports.

3. On the third bill of exceptions, that whatever may be the legal construction of the contract, this being an action for money had and received, the jury had a right to take into their consideration, all the equitable circumstances disclosed by the evidence, and to find a verdict for the appellants, if in their opinion, the appellants had a right in equity and good conscience to retain the money received as freight, even though,  [**10]  had it not been received, they would not have been entitled to recover it, in an action against the appellee, upon the contract of affreightment.

4. On the fourth bill of exceptions, that the court below erred in refusing the direction therein prayed; because, although the contract is admitted to extend to every part of the continent of Europe whatsoever, still Peter Wirgman having been constituted by the appellee, as his special agent, in a certain emergency, if the jury believed such emergency to have occurred in point of fact, then Peter Wirgman, as such special agent, had a right to alter the destination of the goods of the appellee, within the limits of the contract; and having actually done so by proceeding to Hull, and there accepting that part of the cargo which belonged to the appellee, he entitled the appellants to freight, and, therefore, prevented the appellee from recovering in this action.

1. On the first bill of exceptions. The question is, whether the charter party or the letter or agreement of the 14th of May, was the contract between the parties to this suit. A parol agreement inconsistent with one under seal, cannot be set up against the agreement under [**11]  seal. 3 Stark. Evid. 1002. White vs. Parkin, 12 East. 578, 583. Wood vs. Day, 7 Taunt. 646, (2 Serg. & Lowb. 247.) Abbott on Shipping, 454. The agreement of the 14th of May, is repugnant to the charter party. The charter party stipulates, that the cargo might be landed at Sylt; and the agreement of the 14th of May, is, that the cargo should not be landed at Sylt. If the agreement of the 14th of May, did not control the charter party, was the construction given to that agreement, consistent with the charter party? Com. on Cont. 23, 24, 25, (Ed. 1824.) The contract originally stood alone on the bill of lading. The charter party, in fact, was not executed until the 14th of May. The ports in the Baltic and North Seas only were in the contemplation of the parties, no other construction can be given to their agreements. The construction of general expressions in agreement is to be restrained. 6 Bac. Ab. tit. Statute, 381. Adams vs. Woods, 2 Cranch, 341.

2. On the second bill of exceptions. It was the duty of the plaintiff below, to provide certificates of origin of his part of the cargo, required by the municipal regulations of the countries mentioned in this exception. He had covenanted [**12]  by the charter party to do so.

3. On the third bill of exceptions. The first count in the declaration is for money had and received. It is an equitable count; and the defendants are entitled in equity and good conscience, to retain the money received by P. Wirgman. The plaintiff cannot go into the original liability of the party.

Scott, for the appellee, referred to the decision of this court on the former trial in this case, as reported in 4 Harr. & Johns. 568, and to the argument of the counsel as taken in manuscript, but not reported, to show that what has been relied on by the counsel for the appellants now, was not then insisted on. 1. On the first bill of exceptions, he cited Pow. on Cont. 370, 371. 2. On the second bill of exceptions, he stated that more than fourteen years had elapsed between the transaction and the last trial, so that it could not be proved whether or not the captain was furnished with the necessary certificates. The objection raised at the last trial, had not been urged at the former one, or the necessary proof might have been then procured. There was no evidence adduced that the vessel was prevented from entry into any of the ports, because of [**13]  the want of the certificate. She had been captured, but was acquitted at one of the ports. 3. On the third bill of exceptions, he cited 2 Com. on Cont. part 3, Ch. 6, Am. Reg. 21.

Taney (Attorney General of Maryland) on the same side. 1. On the first bill of exceptions. This court in the former case, decided that the parties could make a contract different from the charter party, as to the separate property of any of the shippers. The charter party was a mere formal paper. It was not delivered, and no action could be supported on it. It was executed for no other purpose, but as necessary to make the ship's papers regular. It cannot be the deed of the parties, unless it was intended as such. Com. on Cont. 25, 27, 28. Moorson vs. Page, 4 Campb. 103. 5 Petersdorff, 363, 367, 310, 372, 350, 351, 371. Barker vs. Hodgson, 3 Maule & Selw, 267. 2 Barnw. & Ald. 17. Hadley vs. Clarke, 8 T. R. 259. Smith vs. Wilson, 8 East. 437. Touteng vs. Hubbard, 3 Bos. & Pull. 295 (note.)

2. On the second bill of exceptions. The jury were not the judges of the written decrees of foreign countries. The construction of those decrees was for the court, and not for the jury. Etting vs. Bank of United [**14]  States, 10 Wheat. 50. Did any of the decrees prevent the entry of the vessel, unless she had a certificate of the origin of the cargo? The captain was not bound to sail without the certificate, if it was necessary. Is it a paper of the cargo or of the vessel? Abbott on Shipping, 260, 261. Who was to prove that the certificate was on board of the vessel? If the captain was to prove that it was not on board, then he did not prove that fact. It is to be presumed to have been on board of the vessel. It was not in the power of the plaintiff to prove that it was on board, as it was in the possession of the captain. The captain did not attempt to enter the port, but sets up an excuse for not attempting it. He was then bound to prove why he did not. Van Omeron vs. Donrick, 2 Camb. 42. Tarleton vs. M'Gauley, Peakes N. P. Cas. 205.

3. On the third bill of exceptions. The jury are not to decide what is equity and good conscience. Hunter vs. Princep. 10 East. 378.

4. On the fourth bill of exceptions. There is no legal evidence of the fact that the vessel was ordered away from Flekkefiord. It was only the declarations of the pilot, which are not evidence.

Wirt, in reply. 1. The construction [**15]  attempted and insisted on by the counsel of the appellee, is, that there were two agreements--one between the ship owners and the appellee, and the other between them and the other shippers. There is a sealed instrument and an unsealed instrument, inconsistent with each other. Which is to give the law of the contract? Can an agreement under seal be revoked by an agreement not under seal? The authorities already cited on the part of the appellants are admitted; but it is said that this court decided the question on the former trial. That question was not before this court on the former appeal, as to the comparative dignity of the two instruments. General expressions found in a statute are to give way to the intention of the legislature. 1 Blk. Com. 87. Com. on Cont. 533. Woods vs. Fulton & Stark, 2 Harr. & Gill, 71.

2. If the court were not called on to expound the decrees of the foreign countries offered in evidence, then the jury were the judges of both the law and the fact. But the jury were not required to expound the decrees at all. The question put to the jury was, if they believed that agreeably to the decrees, the ports of the countries were closed as to uncertified colonial [**16]  produce, and there was no certificate, &c. then Wirgman was justified in going to England. The certificate was necessary for the safety of the cargo, but not for the vessel. The owner of the vessel could not know whence the cargo came; that was in the knowledge of the freighters. Holt on Shipping, 81. Levy vs. Costerton.--Holt's Rep. 170. The plaintiff was bound to prove that the certificate was on board of the vessel. He might have proved by the consul at Baltimore, that he had obtained the certificate required. How could Wirgman prove that it was not on board? He could not prove a negative. But it has been insisted, that it is to be presumed that all necessary papers were on board, and Van Omeron vs. Dowick, 2 Campb. 42, was relied on for that purpose. In that case it was the officer of the same country, and it was presumed he did his duty. It has nothing to do with the case now before this court. The case of Tarleton vs. M'Gawley, Peakes N. P. Cas. 205, is not applicable to the present question.

4. On the fourth bill of exceptions, he referred to Drake vs. Hudson & Franciscus, 7 Harr. & Johns. 399.  

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

OPINIONBY:
BUCHANAN 

OPINION:

 [*160]  BUCHANAN, Ch. J. delivered the opinion of the Court.
This is an action of assumpsit brought to recover a sum of money retained by Charles & Peter Wirgman, who were the owners of the ship William Wilson, on account of freight, out of the proceeds of that part of the cargo, shipped on board that ship, which belonged to the appellee; and the question is, whether freight was earned or not.
Four bills of exceptions were taken at the trial. The appellee who was the plaintiff below, offered to prove, that the ports of Constantinople on the Dardanelles, of Salonica on the Morea, and of Gibraltar, all on the continent of Europe, were in the year 1810, open to American vessels loaded with colonial produce, an objection to the admissibility of which testimony, made on the part of the appellants, was overruled by the court. This forms the subject of the first bill of exception, and involves the construction of the contract, between the appellee and Charles & Peter Wirgman.

 [*161]  It is stipulated in the charter party, that the master shall proceed with the ship from Baltimore for the island of  [**18]  Sylt; "and if, on arrival there, it can be ascertained that the ports of Hamburg and Bremen are open to the admission of American vessels, that the said master shall forthwith proceed to whichsoever the said ports, the supercargo and himself shall think most for the interest of the freighters. But should the said ports of Hamburg and Bremen continue closed, then the said cargo shall be landed at Sylt if permitted; and in case of refusal to permit the same to be landed at Sylt, that then the said master shall proceed therewith to such permitted port on the North Sea or the Baltic, as he and the supercargo shall order and direct. And should the Baltic be also closed against the admission of American vessels, in such case the said master shall proceed with the said cargo to such other port, as he and the said supercargo may in their discretion think most proper. And that on the arrival of the said ship at the port of delivery, the said master shall and will make a right and true discharge of the said cargo, to the supercargo, or to such other agent, factor or consignee of the freighters, as they may direct, agreeably to the bills of lading [**19]  to be signed for the same, and so end and finish the said intended voyage, &c." and the freighters covenant to "pay freight for said cargo agreeably to bills of lading to be signed for the same, provided the said cargo be discharged at a port in the North Sea; but if delivered at any port in the Baltic, not higher than Kiel or Colberg, then &c. to pay unto the owners an advance of &c. on the amount of freight money stipulated in the said bills of lading. If higher than Kiel or Colberg, and not higher than Koningsburg, a like advance of &c. and if higher than Koningsburg a like advance of &c., and should the Baltic be shut, a further advance to be settled by arbitration, &c."
This is not an action upon the charter party, and it is not perhaps necessary to inquire what would be the proper construction of that instrument if it stood alone. But taken together with the bill of lading, to which it refers, it seems very clear 

 [*162]  that the permitted port contemplated, was a port in the North Sea or the Baltic.
One of the stipulations in the charter party is, that in case of a refusal to permit the cargo to be landed at Sylt, the master [**20]  shall proceed therewith to such permitted port in the North Sea or the Baltic, as he and the supercargo shall order and direct. And another is, that on the arrival of the ship at the port of delivery, the master shall discharge the cargo, to the supercargo, or to such other agent, &c. of the freighters, as they may direct, agreeably to the bills of lading to be signed for the same, and so end and finish the said intended voyage, with a covenant by the freighters to pay freight agreeably to the bills of lading to be signed. And the bill of lading for the goods of the appellee, states the ship to be bound from Baltimore for Sylt and a permitted port in the North Sea or Baltic, and that the goods are to be delivered at such permitted port, unto Messrs. David Parish & Co. Hamburg, or their assigns, he or they paying freight, &c. at certain stipulated rates.
Here then is a charter party, in which the owners engage to deliver the cargo at a permitted port in the North Sea, or the Baltic, to the agent of the freighters, agreeably to the bills of lading to be signed, and so to end the intended voyage; and the freighters to pay freight agreeably to the bills [**21]  of lading, with certain stipulated advances.
And a bill of lading of the goods of the appellee, in which, they are contracted to be delivered at a permitted port in the North Sea, or the Baltic, to Messrs. Parish & Co. Hamburg, or their assigns, at certain rates of freight therein mentioned.
So far then as concerns the goods of the appellee, it is a contract for the delivery of them at a permitted port in the North Sea, or the Baltic, to the Messrs. Parish & Co. Hamburg, or their assigns, at the rate of freight mentioned in the bill of lading, and the advances stipulated in the charter party, and the ending of the voyage by such a delivery of the goods at such permitted port. The charter party by the references to the bills of lading, in the provisions for the delivery of the cargo to the agent of the freighters, "agreeably to the bills of lading to be signed," 

 [*163]  and the payment of freight "agreeably to the bills of lading to be signed," adopted, and made a part of it, the stipulation in the bill of lading of the appellee's goods, for the delivery of them at a permitted port in the North Sea, or the Baltic, to the Messrs. Parish  [**22]   & Co. Hamburg, or to their assigns, and for the payment of freight; and is the same, as if instead of referring to the bills of lading, it had expressly stipulated, that the master should deliver the goods of the appellee, at a permitted port in the North Sea, or Baltic, unto Messrs. David Parish & Co. Hamburg, or to their assigns, for the freight mentioned, and so end and finish the said intended voyage; that is, to end and finish the voyage, as respected the interest of the appellee, by a delivery of his goods to the Messrs Parish & Co. or their assigns, at a permitted port in the North Sea or Baltic.
There were a number of persons interested in the cargo besides the appellee; and the different provisions in the charter party, with the engagement to deliver the cargo agreeably to the bills of lading, (in the plural,) were probably introduced to meet the views and interests of the several shippers, according to the stipulations of their respective bills of lading, and whatever latitude may have been given in any of the other bills of lading, that for the goods of the appellee, limited the contract in relation to them to a port in the North Sea, or  [**23]  Baltic, and surely the parties were competent so to contract.
Then comes the memorandum or agreement of the 14th of May, 1810, entered into by the owners, which is in these words: "We hereby agree and acknowledge, that the sundry goods shipped by you on board the ship William Wilson, Peter Wirgman, master, are to be landed in a permitted port on the continent of Europe, (meaning that they are not to be landed on the Island of Sylt,) before the freight is earned. But should the whole of the continent be shut, the freight with an addition, (as arbitrators may determine,) will be earned, should the property be landed in England, agreeable to the custom of the country." And this agreement is supposed so to alter and control the voyage, as to extend the contract between the Wirgmans and the appellee to any port on the continent of Europe.

 [*164]  This cause was once before in this court, on an appeal from the judgment of the Baltimore County Court, and on a reversal of that judgment, was sent back under a procedendo--and it is probable that, that court has been misled by the loose language of the opinion delivered on that appeal, and has supposed,  [**24]  that the contract of the parties was held by this court, to relate not merely to ports in the North Sea or the Baltic, but to any port on the continent of Europe, no matter where, or in what sea, as is now insisted upon here. And perhaps, looking to the opinion alone, that would be its construction; but it was certainly not so intended. Having delivered the opinion myself, I can speak confidently on the subject, and regret that it was not delivered in more guarded and restricted terms.
But the idea, that the contract looked for the destination of that part of the cargo at least, which belonged to the appellee, to any permitted port on the continent of Europe, other than a port on the North Sea or Baltic, was not suggested in the argument, which was particularly, and with great force, directed to the political state of affairs in Europe, in reference to what was commonly called the continental system, and the advanced and inclement season of the year, which it was contended forbid an attempt by the master to navigate the Baltic; and with the danger of capture and detention by privateers, justified his proceeding to Hull, and there delivering the [**25]  cargo. The whole course of the argument which was a very elaborate one, pointed to a state of things having no connection with, or relation to, other ports on the continent of Europe, not in the North Sea or Baltic. The question whether the contract contemplated any other permitted port on the continent of Europe, than one in the North Sea or the Baltic, was not raised, nor thought of by the court, at least by myself; but looking only to those seas, and construing the engagements between the parties, with reference to the known state of affairs in Europe, as likely to operate upon the governments on the continent, having ports in those seas, and not the governments without the influence of that state of things, and having ports in other seas, the broad terms, the whole of the ports on the continent of Europe, to be found in the opinion 

 [*165]  delivered, were too carelessly perhaps taken from the agreement, and were not meant to be used with reference to all the ports of the continent, no matter where or in what seas, as the ports intended by the contract, at some one of which the goods were to be delivered, before freight could be earned: but to [**26]  the ports only on the continent of Europe, in the North Sea or the Baltic, according to the subject matter then in the view of the court. And that we think, is the only legitimate construction that can be given to the papers at that time, as now before us.
Looking to the historical facts and occurrences of the time, to which we may judicially look, and cannot well shut our eyes against them, it is manifest that, the voyage was undertaken, and the charter party, the bill of lading, and the agreement entered into, with a view to the political state of affairs in Europe, and should be construed with a view to that state of affairs; and so interpreted, it is not difficult to perceive, that the permitted port on the continent of Europe, in which the goods were, by the agreement to be landed before freight could be earned, was intended to be a permitted port in the North Sea or the Baltic; other ports on the continent of Europe, such as Constantinople, the ports in the Morea and Gibraltar not being affected by the system, the state of things, in the view of the parties, and the ports of the continent in the North Sea and the Baltic being [**27]  alone within their influence.
The question is not what would be the correct construction of the agreement of the 14th of May, 1810, if it stood alone, without any index pointing to the intention of the parties, that could be properly looked to; or any thing in the context, to restrict the understanding of the general terms used, according to their plain and popular meaning, to a mere special and peculiar sense; but it is apparent that, that agreement relates to the voyage, contemplated by the charter party and bill of lading of the appellee's goods, and the acknowledgement that they are to be landed in a permitted port on the continent of Europe, before freight is earned, has reference to, and so far recognizes the contract arising from those instruments, and should therefore be 

 [*166]  construed in connection with them, and that contract, looking for the destination of the appellee's goods, to a permitted port in the North Sea or Baltic, the agreement speaking in relation to that contract, must be understood, by the terms "on the continent of Europe," to mean on the continent of Europe, in the North Sea or Baltic, and to have used those terms only [**28]  for the purpose of showing, that the goods were to be landed on the continent, as distinguished from the Island of Sylt, and that interpretation is given to it, by the clause immediately following in the agreement itself, "meaning that they are not to be landed on the Island of Sylt," that is, that the terms "on the continent of Europe" mean not on the Island of Sylt, or denote, that they were not to be landed on the Island of Sylt, but on the continent only, before freight could be earned, and were used for that, and no other purpose. And the words in the last clause, "but should the whole of the continent be shut," have reference to what goes before, and must be construed to mean the continent, in the same restricted sense, in which it is before spoken of, that is, the whole of the continent of Europe on the North Sea and Baltic--and cannot mean any part of the continent, not contemplated in the preceding part of the agreement. Under this construction of the agreement, taken in connection with the charter party and bill of lading to which it relates, the contract between the parties is, that the goods shipped by the appellee shall not be landed [**29]  on the Island of Sylt, but at some permitted port on the continent of Europe in the North Sea or Baltic, before any freight shall be earned; but in the event of the whole of the ports on the continent of Europe in the North Sea and Baltic being shut, then, and not otherwise, the owners shall be entitled to freight on the goods being landed in England, with a stipulated addition.
The ports of Constantinople, on the Dardanelles of Salonica, in the Morea, and of Gibraltar, were not the permitted ports contemplated by the contract; proof therefore of their being open in the year 1810, to American vessels loaded with colonial produce, was irrelevant and inadmissible, and the testimony of John Donnell ought to have been rejected.

 [*167]  By the term shut, as used in the contract, is meant an occlusion by the municipal regulations of the country, and unless in that sense of the term, all the ports on the continent of Europe in the North Sea and Baltic were closed against the admission of the goods of the appellee, on board the ship William Wilson, the vessel could not earn freight by going to England;  [**30]   nor then, unless the instructions given by the appellee in his letter of the 8th of May, 1810, to Peter Wirgman, the master, were complied with.
It has been contended, that if agreeably to the orders and decrees of France, Prussia, Russia, Sweden and Denmark, all uncertificated colonial produce was prohibited from entry into any of the ports on the continent, in the North Sea or Baltic. It was incumbent on the appellee to have furnished the captain of the ship with a certificate of origin of that part of the cargo which belonged to him; and that if he neglected to do so, the captain fulfilled the contract of affreightment by proceeding to Hull, and there delivering the cargo. But we think otherwise, and that the want of such a document alone, was not sufficient to justify the captain in proceeding to Hull, and there delivering the appellee's goods. All parties were aware of the unsettled state of affairs in Europe, and the difficulties that would probably attend the landing of the cargo at any of the contemplated ports in the North Sea and Baltic. The charter party and bill of lading show it; the agreement and letters of instruction prove [**31]  it. The goods were shipped, and the voyage undertaken, with the expectation of having risks and difficulties to encounter, and the contract and instructions were framed accordingly. The ship owners knew when they signed the agreement, which was subsequent to the bill of lading, that no certificate of origin was on board, and with that knowledge, and a knowledge of the character of the cargo, made their engagement with a view to the difficulties that might attend the landing of such a cargo, under such circumstances; and can no more avail themselves of the want of that document, because of the prohibition merely of uncertificated colonial produce, than they could have done of the fact, that the cargo consisted of colonial 

 [*168]  produce, if the prohibition had been of all such produce, uncertificated or otherwise. If in the latter case, they could not have sheltered themselves under the pretext alone, that the cargo consisted of colonial produce, and was therefore prohibited from entering any of the contemplated ports, having made their contract in relation to such a cargo; neither can they in this case, avail themselves of the circumstance alone, that the appellee's part of [**32]  the cargo consisted of uncertificated colonial produce, and was therefore prohibited, having made their contract in relation to goods in that known predicament. The same reason would seem to apply in one case, as in the other; the prohibition in both being of the goods on board. In one, of goods without a certificate of origin; in the other, either with or without such a certificate, and there is no evidence in the cause to show that it was incumbent on the appellee to have provided such a paper, to enable him to resist the claim of the ship owners to freight, or that he was required to do so. The shipment was made on a calculation of chances, and the knowledge, advice and assistance of the Messrs. Parish & Co. Hamburg, were evidently much relied upon for the success of the enterprise. And to obtain the benefit of their counsel and assistance, the appellee, in his letter of instruction to Peter Wirgman, the master, informs him, that he had requested them to consult with him on the further destination of the ship, and the disposal of his interest on board, in the event of an entry being denied at Hamburg; directing him to advise with them, as to what was best to be done [**33]  for his interest; and constituting him his agent, if the state of affairs should be such as to prevent his communicating with them; in which case, he tells him to open his letter of instructions to them, to which he refers him for his government. These instructions the master was bound to obey; it was his duty diligently to seek and to pursue the advice and directions of Messrs. Parish & Co. and if agreeably to the orders and decrees of the governments of France, Prussia, Russia, Denmark and Sweden, the goods of the appellee were prohibited from entering the ports on the continent of Europe, in the North Sea and Baltic, yet there might have been such 

 [*169]  occasional suspensions of them, or relaxation in the enforcement of them, as to render the information and advice of Messrs. Parish & Co. of the first importance. And it would seem to have been in such a state of things, that the appellee wished to have the benefit of their superior intelligence and advice, and not when it could be had, to trust to the discretion of the master, who could not be so well informed. If there was a port on the continent of Europe, in the North Sea or Baltic [**34]  , open to the admission of the appellee's goods, the master was bound to go there, before freight could be earned; it was the contract of the owners with the appellee, and he had a right to stand upon it. And the master could not entitle them to freight by going to England, and there delivering the goods, either contrary to, or without the advice of Messrs. Parish & Co. unless he was cut off from all communication with them by the unsettled state of affairs at the time. What then was the course pursued by the master? In his letter to Messrs. Parish & Co. of the 13th of July, 1810, he informed them of the capture of the ship by a Danish privateer, and that he was taken into a Danish port for adjudication; spoke of his having property on board belonging to the appellee, and asked advice and information, but said nothing of the consignment of the goods to them. That letter does not appear to have been received. In his letter of the 14th of September, 1810, he informed them, that he had craved their advice in his preceding letter, respecting his future destination, but added, that a more extensive knowledge of prize cases induced him to believe, that if he was in [**35]  possession of it, it would be of no advantage. Thus virtually dispensing with any advice from them upon the subject; and upon that assumption he seems to have acted, as there is nothing to show, that he ever afterwards sought any advice or information from them in relation to the destination or disposition of the appellee's goods. In that letter he advised them, that a considerable part of the cargo was to their address, without saying to whom it belonged, or giving any account of the amount or character of the goods. On the 13th of October, 1810, he received an answer from them to his letter of the 14th of September, 

 [*170]  dated the 2d of October, and received in eleven days after it was written. In this letter, they requested him to inform them, who were the shippers of the consignment to their address, and to forward any letters he might have for them, with any other information that might be useful, suggesting difficulties respecting the future destination of the ship, in the event of her being liberated, but that there was time enough to correspond on that subject, after being informed of the cargo on hand, and at the same time telling him, that several of their friends [**36]  had proceeded from Gottenburg to Carlsham, there to unload their cargoes, &c. On the 14th of October he acknowledged the receipt, on the preceding day, of that letter, informed them for the first time of the quantity and description of the goods to their address, and that they were shipped by the appellee, and that he was in daily expectation of his sentence, of which they might depend upon being immediately advised. On the 30th of October they answered that letter; told him they were anxiously awaiting the result of the proceedings in the court of prize; referred him to the public papers for the late French and Danish decrees, and told him that under existing circumstances, it was difficult to point out a proper port of discharge, so many changes were taking place, but that if any further alterations should take place, they would keep him informed. In his letter of the 8th of November, 1810, he advised them of the liberation of the vessel, and the restoration of his papers, on the 5th of the same month, by sentence of the prize court, and of his determination to discharge the cargo at Flekkefiord, where the ship was then lying. Thus announcing his determination [**37]  not to seek or await any instructions or advice from them, relative to the disposition of the cargo, but to act upon his own judgment. And on the 10th of the same month, he acknowledged the receipt of their letter of the 30th of October, eleven days after it was written; and after regretting that it contained no information to induce him to alter his determination to unload at Flekkefiord, told them he intended to commence doing so on the Wednesday following--and afterwards without consulting them on the subject, or giving them any intimation 

 [*171]  of his intention to do so, sailed for Hull, where he unloaded the cargo.
Resting here, there is not a title of evidence to show a compliance by the master, with his instructions; but on the contrary, the whole of it has the opposite bearing. In his first letter to Messrs. Parish & Co., he informs them of the capture of his ship; in his second he tells them, that his knowledge of prize cases, induces him to believe that their advice in relation to his future destination, would be of no advantage to him; and in his third, he for the first time, (and that only in compliance with their request, contained in their answer to [**38]  his second letter,) discloses to them, the quantity and description of the goods to their address, and the name of the shipper--and although requested in the letter to which that is an answer, to forward to them any information that might be useful, and also told that it will be time enough to correspond on the subject of his future destination, after they should be informed by him of the goods he had on hand, he neither communicates to them the nature of his instructions, nor asks their advice. In his fourth, he announces to them the restoration of the ship and papers, and that no appeal was made, and also his determination to discharge the cargo at Flekkefiord. But it does not appear, that he forwarded the letters of instruction to them, from the appellee with which he was entrusted, notwithstanding his saying, that the papers were restored to him on the 5th of November, and their request in their first letter, that he would forward any letters he might have for them; and in his last letter to them, he reiterates his determination to unload at Flekkefiord, and tells them that he intends commencing it on the Wednesday following, though they had before suggested to him, that [**39]  some of their friends had proceeded from Gottenburg to Carlsham, there to unload their cargoes; and speaking of the frequent changes that were occurring, had promised in their letter of the 30th of October, to keep him informed of any changes that might take place in the state of affairs. And with a view to those frequent changes, that very unsettled state of affairs it was, that the shipment was made, and his instructions given him to 

 [*172]  consult with, and be governed by the advice of the Messrs. Parish & Co. But having as early as the 14th of September, 1810, brought his mind to the conclusion, that the advice of Messrs. Parish & Co. would be of no service to him, and acting upon that assumption, he manifestly determined, not to throw himself upon them for information or instructions, but to take the disposition of the cargo upon himself. And he did do it, regardless of their suggestion, that some of their friends had proceeded from Gottenburg to Carlsham, to land their cargoes, their promise to keep him informed of any changes that might take place in the state of affairs, and their intimation of a correspondence to be opened, after they should be [**40]  informed by him of the goods on hand, all which was before the vessel had been liberated; his advice of which event was accompanied by the information, that he had determined to discharge the cargo at Flekkefiord, and followed two days after by the information, that he should begin unloading the Wednesday following, without asking any advice or information on the subject, which, added to his having withheld a disclosure of his own instructions, and neglected to forward the letters of instruction to them from the appellee, and thus kept them in a state of ignorance that he was placed under their direction, was calculated to induce the belief, that he was acting by authority, seeing that he withheld himself from all further communication with them, and sufficiently accounts for their not writing to him again, in the absence of proof of any other cause.
If at the time of the liberation of the William Wilson, all the ports of the continent of Europe on the North Sea and Baltic, were, in fact, closed by municipal regulations, against the admission of a vessel and cargo in her predicament, and she was expelled from the ports of Norway, by the orders of the Danish [**41]  government, so suddenly after her liberation, as not to allow time for a further correspondence between the master and Messrs. Parish & Co., and he was prevented from communicating with them, by the situation of affairs, and not by his own act or conduct; he would, under such circumstances, to be found by the jury, and by force of his letter of instructions, have 

 [*173]  become the special agent of the appellee, and by proceeding to Hull, in England, and there accepting that part of the cargo which belonged to the appellee in fulfilment of the contract, have entitled the owners to freight, and the court should have so instructed the jury, if there had been any evidence in the cause to justify such a direction. But we can discover no such evidence.
If it should be conceded that, that part of the deposition of James Dooley relied upon for that purpose, was legal evidence, which is not very clear, being only evidence of what he heard a pilot say, there is nothing in it to sustain such a direction. The most that can be made of Dooley's testimony is, that about the 10th of December, 1810, the master went on board the ship accompanied by a pilot, who directed her [**42]  to be got under way, and said he had received orders from a custom house officer to take her to sea that night. Now there is nothing in this, tending in the slightest manner to prove, that the ship was expelled from the port of Norway by the orders of the Danish government so suddenly after her liberation, as not to allow time for a further correspondence between the master and Messrs. Parish & Co., and that he was prevented from communicating with them by the situation of affairs, and not by his own act or conduct. The ship was liberated, as is shewn by the letter of the master himself, of the 8th of November, 1810, on the 5th of that month, and according to Dooley's deposition, was taken to sea by the pilot about the 10th of December, thirty-five days after her liberation; during the whole of which time, she was permitted by the state of affairs, to remain at Flekkefiord. It is also shewn by the letters of the master, that in answer to letters addressed by him to Messrs. Parish & Co., after the capture and during the detention of the ship, he received two letters from them, in eleven days after their respective dates. Dooley's testimony then, so far [**43]  from tending to prove, or affording the slightest ground for the inference, that the ship was expelled from the ports of Norway so suddenly, as not to allow time for a further correspondence between the master and Messrs. Parish & Co. if it proves any thing, clearly established the contrary hypothesis, by shewing that she was 

 [*174]  permitted to remain at Flekkefiord thirty-five days after her liberation; quite long enough for a communication with Messrs. Parish & Co., as it only required eleven days for a letter to pass between them--during which time, the master, if he had been so disposed, might, as it was his duty to do, have opened a correspondence with them, relative to the disposition or further destination of the appellee's goods. And so far from there being any evidence to show, that his not seeking the advice of Messrs. Parish & Co., was owing to the situation of affairs, which prevented his communicating with them, the whole of the evidence lies the other way. His telling them in his second letter, that their advice would be of no service to him, and never afterwards seeking it; and his following up that with his letters of the 8th and 10th of November,  [**44]  in the first of which he advises them of the liberation of the ship, and his determination to land the cargo at Flekkefiord, and in the other, of his intention to commence unloading on the Wednesday following; and the evidence of Dooley, that in the month of October or November, before the vessel was released, he heard him and Thomman, the supercargo employed by the other shippers, say, that they had united in the determination to proceed to Hull in the event of the liberation of the ship, with the additional circumstance, that he made no effort to obtain their advice, during the thirty-five days that the ship was permitted to remain at Flekkefiord after her liberation, tend strongly to prove his fixed determination, not to submit himself to their directions, but to act upon his own judgment and responsibility. The hypothetical direction, therefore, which was asked for by the prayer set out in the fourth bill of exceptions, was properly refused, being an abstract proposition, not arising out of the evidence in the cause.
Whether the ship owners were, under the circumstances of the case, entitled in equity and good conscience, to retain the money received [**45]  on account of freight, was clearly a question not to be left to the jury, but proper only to be decided by the court.

 [*175]  We concur, in opinion, with the court below, on the second, third and fourth bills of exception, but dissent from the opinion expressed in the first exception, and REVERSE THE JUDGMENT AND AWARD A PROCENDO.  

12 of 44 DOCUMENTS 

SMITH vs. EDWARDS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

2 H. & G. 411; 1828 Md. LEXIS 37 

June, 1828, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court. Action of assumpsit. The declaration contained several counts--one for sundry articles properly chargeable in account, &c. one for goods sold and delivered, &c. and the usual money counts. The defendant, (now appellee,) pleaded non assumpsit, and issue was joined.

At the trial the plaintiff, (the appellant,) gave in evidence that William Stansbury was a merchant, residing in Baltimore, occupying a store therein, in which he was accustomed to sell various articles of hardware, dry goods and merchandize, which he carried on in his own name, and for his own account, for several years previous to, and on the 30th of March 1824, and until the month of August of that year, during all which time he was in good credit, and was in the frequent habit of purchasing merchandize for his said store on his own responsibility. The plaintiff further gave in evidence, that on the said 30th of March 1824, the said William Stansbury executed and delivered to the defendant the following bill of sale: "Know all men by these presents, that I, William Stansbury, merchant of the city of Baltimore, for and in consideration of the sum of one dollar current money of the [**2]  United States, to me in hand paid by Elizabeth Edwards of Baltimore county, at or before the sealing and delivery of these presents, the receipt whereof I, the said William Stansbury, doth hereby acknowledge, have granted, bargained and sold, and by these presents doth grant, bargain and sell, unto the said Elizabeth Edwards, her executors, administrators and assigns, the following negroes, to wit: Negro George, negro Nance, Elizabeth and Henry, also a judgment I have obtained against Andrew Magrew in the state of Ohio; also my four wheel carriage, gig, all my household furniture of every kind and description in the dwelling-house that I at present occupy; and all my stock of goods on hand, consisting of a variety of hardware, groceries and dry goods. To have and to hold all and singular the said negroes, household furniture, and stock of goods, and all and singular the other personal property above mentioned, and bargained and sold as aforesaid, unto the said Elizabeth Edwards, her executors, administrators and assigns, forever. And I, the said William Stansbury, for myself, my heirs, my executors and administrators, all and singular the said negroes, household goods, and other personal [**3]  property, unto the said Elizabeth Edwards, her executors, administrators and assigns, against me the said William Stansbury, my executors and administrators, and against all and every other person or persons whatsoever, shall and will warrant and forever defend by these presents." Signed and sealed by the said Stansbury on the 30th of March 1824, and by him, on the same day, acknowledged before a justice of the peace for Baltimore county.

The plaintiff further gave in evidence by Thomas J. Barry, that he was, on the said 30th of March, long before and until the month of August 1824, a clerk in the employ of said William Stansbury; that on the said 30th of March 1824, said Stansbury had in his store hardware and other merchandize, on sale, to the amount of from $ 1000 to $ 3000 dollars; that in the months of April and May 1824, the goods and merchandize specified in the following invoices, were sold and delivered by the plaintiff to the said Stansbury.

"Baltimore, April 23d, 1824.

Col. William Stansbury, Bot. of John W. Smith." (Then follows an account amounting to $ 204 08.) Also "Col. William Stansbury Bot. of John W. Smith. Baltimore, May 13th 1824. (Then follows another [**4]  account amounting to $ 110 00.) That the said goods and merchandize were received into the said Stansbury's store, accompanied with the said invoices, which goods were examined by the witness, compared with the invoices, found to agree, and the goods were placed on the shelves in the said store occupied by Stansbury, along with the other goods in the said store; and all the said goods were indiscriminately offered for sale as usual, and part of the goods purchased from the plaintiff were sold from time to time with the other goods, and a part of them remained in the store in the early part of August 1824. During all which time the witness had no knowledge of the bill of sale above mentioned, and considered himself as the clerk of said Stansbury, and all the goods in the said store as belonging to said Stansbury. That the witness was first informed that the defendant had a bill of sale for the goods in Stansbury's store, in the early part of August 1824, by Mr. Richard Frisby, the son-in-law of the defendant, who then, in her name, as her agent, demanded of the witness the key and possession of the store, which the witness refused to deliver until directed by Stansbury. That Stansbury [**5]  on the same day directed the witness to deliver the key to Mr. Frisby, which he did; and that all the goods which remained in the store, including a part of those purchased from the plaintiff, but what proportion the witness does not know, were shortly after sold by Frisby, the agent of the defendant, at auction. And evidence was given, and it was admitted, that the proceeds of the sale at auction were about $ 2000. Which amount was received by an agent of the defendant, and part of it retained in satisfaction for money lent by her to Stansbury, and the residue applied to the payment of notes of Stansbury on which the defendant was security, as drawer or endorser, for the accommodation of Stansbury. The plaintiff also, by Edward J. Richardson, proved that the witness, as clerk to the plaintiff, made out the two invoices above inserted, and that the goods therein described were sold and delivered by the plaintiff to Stansbury, at the respective dates mentioned in the said invoices. The plaintiff further offered in evidence, that the money for which the goods were sold at retail, was received by Stansbury during the months of March, April, May, and until the time when the goods in the [**6]  store were delivered to Mrs. Edwards, and by him applied to the payment of his general debts, notes and house-hold expenses, and to the reduction of notes which Mrs. Edwards had drawn or endorsed for the use and accommodation of said Stansbury. And the witness of the plaintiff, upon being asked by the plaintiff's counsel, whether there was any agreement when the bill of sale was executed, or at any other time, that the proceeds of the goods, or any part thereof, was to be received by Mrs. Edwards, the defendant, or applied to her benefit? replied, that none such was made or existed. That he himself had attended to the transaction for Mrs. Edwards, that he made none such, nor had she received any part thereof. Upon the cross examination of the plaintiff's witness by the defendant's counsel, he stated, that a note of Stansbury's was protested for non payment the day before the demand was made for the key; he also stated that he himself was on a note of Stansbury's, and that Stansbury, in the said month of August, after the sale of the goods, transferred to the witness his books of accounts of the business, and the accounts, to him, to secure the debt for which he was so responsible.  [**7]  The defendant then prayed the opinion of the court, and their direction to the jury, that the plaintiff upon the evidence so given was not entitled to recover--1st. Because there is no evidence offered to justify the jury in finding the existence of any co-partnership between the defendant and William Stansbury. 2d. Because there is no evidence offered to justify the jury in finding that the said store or business was carried on by Stansbury for the benefit, and on account of, the defendant, and that Stansbury was constituted her agent for that purpose. 3d. Because there is no evidence to justify the jury in finding that the said goods, wares and merchandize, mentioned in the invoices, were sold and delivered to the defendant by the plaintiff; and no evidence of any combination on the part of the defendant to obtain the plaintiff's goods by fraud. Which opinion and direction the Court [Hanson and Ward, A. J.] gave accordingly. The plaintiff excepted; and the verdict and judgment being against him, he appealed to this court.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

S assigned his entire stock of goods to E, but retained possession of it, went on with his business as usual, and made purchases from J, which when received into his store, were placed among the merchandise assigned to E. After some time S failed, and E took possession of all the goods in his store, (among which were some of the articles received from J.) sold them, and applied the proceeds to the payment of a debt due him by S, and of endorsements made by him for S. In an action by J against E for the goods sold and delivered to S--Held, that there was no evidence from which the jury might infer a partnership, an agency or fraud between E and S, so as to make E liable.  

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

OPINION:

 [*415]  Raymond, for the Appellant, contended,  [**8]  1. That it was competent for the jury to infer from the evidence in the record, that Stansbury was the agent of the defendant below, and that the goods which he purchased of the plaintiff were for and on account of the defendant, and came to the defendant's possession; and that the court below erred in their instruction to the jury, that the plaintiff was not entitled to recover. 2. That the court erred in not leaving the case to the jury upon the evidence. He cited Bank of Washington vs. Triplett & Neale, 26 U.S. 25.
Williams, (District Attorney of U. S.) for the Appellee, cited Davis vs. Davis, et al. 7 H. & J. 36.
JUDGMENT AFFIRMED.  

13 of 44 DOCUMENTS 

JOHN S. STILES vs. JAMES H. CAUSTEN.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

2 G. & J. 49; 1829 Md. LEXIS 5 

December, 1829, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court.

This was an action of assumpsit, instituted on the 21st of April, in the year 1824, by the appellee, (the plaintiff in the court below,) against the appellant, (the defendant in that court.)

The declaration contained counts, for work and labor, and materials found; for use and occupation; for matters properly chargeable in account; for goods, wares, and merchandise; for money lent, and advanced, money had and received; and on an insimul computassent.

The defendant pleaded, 1st. Non assumpsit. 2nd, Non assumpsit infra tres annos; and 3d, actio non accrevit.

Issue to the 1st plea, and general replications, and issues to the 2d and 3d pleas.

At the trial, the plaintiff gave in evidence, that George Stiles, in his life-time, being the owner of three vessels that were sunk at the entrance of the harbor of Baltimore, in order to obstruct the approach of the ships of the enemy to the city of Baltimore, during the late war between Great Britain and the United States, did sometime in the year 1816 or 17, and during the life of said Stiles, unite with several other owners whose vessels had likewise been sunk, in a petition to Congress [**2]  for compensation of the loss occasioned thereby; and that the said Stiles, in conjunction with the said owners, appointed the plaintiff in this cause, to obtain and collect documents and evidence in support of the claims of the said petitioners, and to prosecute the said petition before Congress, by proceeding to the city of Washington, with the necessary documents and proofs to establish the justice of said claim for compensation, and that the said plaintiff should be entitled to receive, as a reward for his services aforesaid, at the rate of twenty per cent. on the amount recovered. The plaintiff further offered evidence, that the said George Stiles died in the year 1819, and before any decision had been made by Congress on the subject of said petition; that sometime subsequent to the death of said George Stiles, and after the defendant had taken out letters testamentary on his estate, he, the defendant, attended several meetings of the aforesaid owners, on the subject of the aforesaid petition, in which it was always stated, that said Causten was acting as the agent of said owners in prosecuting the petition aforesaid. And further, that the defendant wrote the following letter,  [**3]  which he addressed to Commodore Rodgers, at the city of Washington: "Baltimore, 1st February, 1821. Commodore John Rodgers: My dear Sir,--Permit me the pleasure of introducing to your acquaintance, my friend, Mr. James Causten, who visits your city on the subject of the vessels so prudently and efficaciously sunk in this harbor on the ever memorable September, 1814. Mr. Causten goes as a representative of the unfortunate owners, who, you know, have ever since been refused a fair compensation for the very heavy damages sustained, and must beg the favor of you to grant him such friendly advice and information as you may deem calculated to aid him in this very deteriorated business. Yours, with great respect, and pure regard, John S. Stiles." The plaintiff also offered evidence by Robert Barry, that he had had frequent conversations with the defendant, in which he stated that twenty per cent. was the commission stipulated to be paid by said owners, and that the defendant never objected to the same. He also offered in evidence the act of Congress, making the compensation. And that the amount of loss ascertained, according to the provisions of said act, to have been sustained by the destruction [**4]  of said vessels, owned as aforesaid by said George Stiles, being between five and six thousand dollars, was duly paid to the defendant, as executor of said George Stiles, by the agents of the government, and that he has never accounted to the plaintiff for any part of the money so received, but has retained the whole amount. And the plaintiff, further to support the issue on his part, gave evidence to the jury, by legal and competent testimony, that he did collect the documents and proofs in the city of Baltimore, and elsewhere, which were necessary to support the claims of the petitioners, including those of the said George Stiles, and that he did, previous to the death of the said George Stiles in 1819, after said contract, proceed to Washington, and that since the death of the said Stiles, and since letters have been granted to the defendant, did as well collect other documents and evidence in support of said claim, as attend at Washington during several sessions of Congress, prosecuting the claims of the petitioners and of the defendant, until the passage of the law of Congress aforesaid, by which the claims of the petitioners were liquidated. Whereupon, the defendant prayed the [**5]  Court to instruct the jury, that, 1st. If the jury shall believe, from the evidence in the cause, that George Stiles, in his life-time, contracted with the plaintiff for his services as an agent in prosecuting claims for compensation alleged to be due, for the destruction of certain vessels owned by the testator in his life-time, and for which he was to receive at the rate of 20 per centum, and that he continued to act in virtue of that agency, after the death of said George Stiles, in pursuance of said contract, then the plaintiff is not entitled to recover in this action; which opinion the court (ARCHER, Ch. J.) gave. Thereupon the defendant further prayed the opinion of the Court, and their direction to the jury, that there is not sufficient evidence in the cause, to shew that any new contract was made between the plaintiff and the defendant, after the death of George Stiles, by which the plaintiff is entitled to recover in this cause from the defendant, in his individual capacity. And the defendant further prayed the opinion of the Court, that if the jury believe that the claim set up in this case was on a contract for procuring a law of Congress, then the same is against public [**6]  policy and void; both of which opinions the Court refused to give. The defendant excepted; and the verdict and judgment being against him, he appealed to this Court.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

Several persons who had claims on the government of the United States, for injury done to their property, taken and used to prevent the approach of an enemy, employed an agent to collect their evidence, and prosecute their demands; but, before the matter was finally adjusted, one of them died. After this, the representative of the deceased, the defendant, attended several meetings of the persons interested in the said claims, at which it was always stated, that the plaintiff was acting as the agent of the owners of the property taken in prosecuting their claim. The defendant also gave the plaintiff a letter of introduction, in which he was mentioned as the "representative of the unfortunate owners" of the property, for which indemnity was sought; and the person to whom it was addressed, was requested to aid the plaintiff in obtaining redress. One of the witnesses also proved, that in frequent conversations with the defendant, he, the witness, had stated that twenty per cent. was the commission stipulated to be paid by the owners of the aforesaid property; and that the defendant never objected to the same. The plaintiff attended to the agency until the passage of a law, under which the defendant was paid, as executor. In an action by the agent for the recovery of compensation for his services, HELD, that it was properly left to the jury to determine whether there was any new contract between the plaintiff and defendant, after the death of the original owner, by which the defendant would be liable in his individual capacity.  

COUNSEL:
Meredith, for the appellant, abandoned the last prayer. On the 2nd prayer in the exception, he contended, that Baltimore County Court erred in refusing to instruct the jury, that there was not sufficient evidence to shew that any contract was made between the plaintiff and defendant, after the death of George Stiles, by which the plaintiff was entitled to recover of the defendant in his individual capacity. He referred to Davis vs. Davis, 7 Harr. and Johns. 36. Morris vs. Brickley and Caldwell, 1 Harr. and Gill, 107.

R. Johnson, and Evans for the appellee, cited Davis vs. Davis, 7 Harr. and Johns. 39. Morris vs. Brickley and Caldwell, 1 Harr. and Gill, 109. McElderry vs. Flannagan, Ib. 321. 2 Stark. Evid. 83. 4 Maule and Selw. 277. Howard vs. Baillie, 2 H. Blk. 622. 2 Stark. Evid. 117. 1 Chitty Plead. 337. Webber vs. Tivill, 2 Saund. 122, (note 2.) Bank of Washington vs. Triplett and Neale, 1 Peters' Rep. 25.  

JUDGES:
The cause was argued before BUCHANAN, Ch. J. and EARLE, MARTIN, STEPHEN, and [**7]  DORSEY, J.  

OPINIONBY:
DORSEY 

OPINION:

 [*53]  DORSEY, J. delivered the opinion of the court.
The only question for our consideration is, was there any evidence to be left to a jury, of a contract between John S. Stiles, the executor of George Stiles, and Causten, the appellee, by which the latter was employed by the former as agent for the prosecution of the claim, which might be made on the United States, for the injury done to the vessels of the testator, sunk during the late war, for the preservation of the city of Baltimore. We concur with the opinion of the County Court, that there was. Putting out of view the fact, that such a contract was entered into between the testator in his life-time and Causten, and it is unquestionable, from the proof in the cause, that a jury might, nay, ought, to infer the existence of an agreement of this kind, between the appellant and the appellee. Upon no other principle can a solution be given to the acts of John S. Stiles. The right of the jury to draw this inference, is not taken away by proof of a contract between the testator and Causten, of which there is no legal proof that John S. Stiles had any knowledge. The [**8]  fact of such knowledge, is a matter for the jury to decide upon, after deliberating on all the circumstances in testimony before them. The inference of its existence is not self-evident, or so undeniably true, that the human mind could not doubt on the subject. The County Court were right, therefore, in submitting it to the consideration of the jury. We mean to decide simply the question before us; and to intimate no opinion, as to the appellee's right to recover on the count for money had and received, in case all his 

 [*54]  services as agent, had been rendered under his contract with George Stiles, the testator.
JUDGMENT AFFIRMED.  

14 of 44 DOCUMENTS 

ROGERS' LESSEE vs. RABORG and REDDING.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

2 G. & J. 54; 1829 Md. LEXIS 6 

December, 1829, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court.

Ejectment for a tract of land called "Widow's Assistance." The declaration contained a count on the demise of Philip Rogers, the lessor of the plaintiff, on the 1st of February, 1822, for fifteen years. The defendant, the appellee, appeared, entered into the common rule, took defence on warrant, and pleaded not guilty, to which issue was joined. A warrant of resurvey issued, and plots were returned. The defendant took defence for a tract of land called, "Deep Point."

1. At the trial, the plaintiff read in evidence to the jury, the patent for the tract of land called "Widow's Assistance," granted to Henrietta Rogers, on the 13th of January, 1767, and proved, that Henrietta Rogers, the patentee, died in the year 1790, when said land descended to the lessor of the plaintiff, as her heir at law. And also, that said land was held and claimed by them, and partly occupied by the tenants of the said Philip, until the year 1819, when the defendants extended their fence within said land, as denoted by three black dots, as shown on the plots in this cause. The plaintiff also gave evidence, that one Jacob Brown, had been sworn and examined, as a witness [**2]  for him upon the survey made in the cause; that he had at that time shown to the sheriff and surveyor, the objects and matters, stated in the surveyor's explanations to have been shown by said Brown, and located on the plots in this cause, as so shown; and also gave evidence, that the deposition in writing of said Brown, was taken by the sheriff upon the said survey, which deposition was returned to the court by the sheriff, with the plots; and also, that said Brown had been regularly summoned to attend this court as a witness for the plaintiff in this cause. And further gave evidence, that since the taking of said deposition, the said Jacob Brown has become, and still is, afflicted with a paralytic disease, which renders him unable to leave his house, and unable to talk so as to be understood; and the plaintiff thereupon offered to read the deposition of said Jacob Brown in evidence, to which the defendants objected, and the Court, (HANSON, A. J.) being of opinion that said deposition was inadmissible, refused to let it go to the jury. The plaintiff excepted.

2. The defendants then read in evidence to the jury, the patent of a tract of land called Deep Point, granted to John [**3]  Frazier, on the 20th of February, 1749, which said patent contains the following expressions: "We do therefore hereby grant unto him, the said John Frazier, all that tract or parcel of land called Deep Point, lying in the county aforesaid, on the head of the north west branch of Patapsco river, and joining the south west side of Baltimore town, and on a tract of land called Lunn's Lot, beginning at a bounded red oak tree, standing near a bounded locust post, which post is the beginning boundary of Baltimore town, and running thence, &c." And then made title to the said tract of land, by sundry mesne conveyances, through and under one Alexander Frazier. Whereupon the plaintiff offered to read in evidence, a duly attested copy of the record of proceedings in an action of ejectment, and of the plot and certificate of explanations therein, instituted by the said Alexander against Cornelius Howard and the said Henrietta Rogers, for the recovery of the same land called Deep Point, in the Provincial Court of Maryland, in the year 1772, in which the aforesaid tract of land is located, as the claim and pretension of the plaintiff in the action, for the purpose of showing by said plot and explanations,  [**4]  that said tract called Deep Point, was then surveyed and located by said Frazier, in that suit, in the same manner and position, as it is located on the plots in this cause; the plaintiff at the same time offering to prove by the surveyor, who made the plots in this cause, that the present location of the land, was transferred, and made from the locations of the same, as made on the plot in the proceedings so offered to be read in evidence; and further to show, the true original location of said tract of land. The defendants objected, and the court, (HANSON, A. J.) was of opinion, that the matters so offered in evidence, were inadmissible in law, for any of the purposes stated; inasmuch as it appeared by the copy of the proceedings, that said Frazier had suffered a non-suit in said action, notwithstanding it appeared also, by said proceedings, that the judgment of non-suit therein, was rendered against said Frazier, for his default in not giving security for the costs, which the court had ruled him to give, and refused to permit the evidence to go to the jury. The plaintiff excepted.

3. The plaintiff, in addition to the evidence by him given and offered in the preceding bills [**5]  of exceptions, gave in evidence, that a certain Philip Hall, in the year 1782 and 1783, being in possession of, and claiming title to said land, called Deep Point, executed leases for the several lots of the same land, fronting on the north side of Pratt street, which are located on the plots in this cause, to the persons whose names are written on the said lots, on which houses were erected by the lessees, as located on said plots; and that in the said leases, the said Hall calls and describes the lots to be, and to begin respectively at the number of feet therein expressed, East from where the first line of Deep Point intersects the North side of Pratt street, and that the said number of feet, in said leases severally expressed, as their several places of beginning, being reversely measured, extend from the said respective lots on the North side of Pratt street, and terminate at the red circle, on the plots aforesaid; and further proved, that Alexander McKensie, under whom the defendants claim, having become seized and possessed of said Deep Point, under the said Alexander Frazier, did, in the year 1818, sell and convey one of the aforesaid lots, which had been leased by said Hall,  [**6]  to John Mickle, and in the conveyance therefor, said McKensie describes the said lot to begin on Pratt street, at the distance of 52 feet East from the place where the first line of Deep Point intersects Pratt street; and also proved that 52 feet measured reversely from the beginning of said lot, would extend to the North side of Pratt street, and terminate at the said red circle; the purpose of which evidence was, to show, that the location of the said first line of Deep Point, as shown and claimed by said Alexander Frazier in the aforesaid action, at the time thereof, was, and is the same, as that which the plaintiff hath given said line in this cause; and to show that the position and location of the said first line at its intersection, or crossing the North side of Pratt street, as claimed and described by said Hall, in the leases aforesaid, and as claimed and described by said McKensie, in his conveyance aforesaid, was, and is the same, as that which the plaintiff has given said line in the location thereof in this cause; and also to show the true original location of said line and land. Whereupon the defendants produced and read in evidence to the jury, a patent for a tract of [**7]  land called Lunn's Lot, granted to Edward Lunn, on the 20th of July, in the year 1673, and shewed the Court, from the plots in this cause, that the 16th line of Lunn's Lot, as located from red A on said plots in two ways, as shewn on said plots, and also, that Deep Point is located by them, as shewn on the plots, running its first line the entire length thereof, from red A, to red 126, with the said sixteenth line, according to the second location of that line, and that there is no other location of Deep Point on the plots, which runs the first line thereof, its entire length with the said sixteenth line. Thereupon the defendants prayed the opinion of the court, and their direction to the jury, that inasmuch as Deep Point, if run course and distance, will run into Lunn's Lot, as located by both plaintiff and defendant, and the grant of Deep Point, properly construed, calls to join on Lunn's Lot, that the first line of the tract called Deep Point, must run with an outline of Lunn's Lot, the extent of the distance of the first line of Deep Point; and the residue of the tract must be located, course and distance, with such an allowance for variation, as the jury might deem proper to make;  [**8]  and inasmuch as Deep Point, thus located, binding on Lunn's Lot, as located by either the plaintiff or defendant on the plots, covers the whole land in controversy in this cause, that the plaintiff is not entitled to recover; to which construction of the patent of Deep Point, the plaintiff objected, and showed to the court, by the plots in this cause, that the defendants claim, for the tract called Deep Point: in their defence taken in this cause, a different position from that so taken. The court, (HANSON, A. J.) gave the following direction to the jury: the tract of land called Deep Point, must, in its first line, run joining on Lunn's Lot, the entire length of said line, and cannot run into it; and there being but two locations of Deep Point in this manner, by either of which, the claims and pretensions of the plaintiff, are covered by Deep Point, to which he sets up no title, the plaintiff is not entitled to recover.

The plaintiff excepted; and the verdict and judgment being against him, he prosecuted the present appeal.  

DISPOSITION:
JUDGMENT REVERSED, AND PROCEDENDO AWARDED.  

HEADNOTES:

It is a settled rule of evidence, that if a person who has been regularly sworn and examined on the ground, upon a survey executed in an action of ejectment, dies before the cause is tried, or leaves the State, and goes to parts unknown and without the reach of the process of the State, so that his attendance as a witness cannot be procured, his deposition so taken, and returned with the plots, may be read in evidence at the trial from necessity.

So the deposition of a witness sworn and examined under the same circumstances, and who had become paralytic since his examination, and though regularly summoned, was unable to leave his house, or to speak so as to be understood, may also be read in evidence at the trial, for the same reason.

Locations made by a lessor of the plaintiff in an action of ejectment, as, and for his claim and pretensions to a tract of land, being transferred to the plots in another action of ejectment, brought against those claiming under the lessor in the first action, and who took defence for the same tract in the second action, are competent, though not conclusive evidence for the plaintiff in the second action, to shew the true location of such tract, although the first action was dismissed.

Where boundaries called for in a grant can be established, it is a settled principle of construction, that the courses and distances expressed, are to be disregarded, and the lines run to the boundaries, according to the calls.

The patent for a tract of land described it as follows: "lying in the county aforesaid, on the head of the N. W. branch of P. river, and joining the S. W. side of B town, and on a tract of land called L, beginning at a bounded red oak tree, standing near a bounded locust post, which post is the beginning boundary of B town, and running thence, &c." the different lines by course and distance, without calls. HELD, that upon the true construction of this patent, neither the first, nor any other line of the tract granted by it, has a call to the first, or any other line of the tract called L, and that the word "joining," as there used, is not of such imperative and binding force, as that the said tract must be so located as to join L, but that the beginning tree being ascertained, the location of the land from that tree, must be governed by the particular description given in this case, by courses and distances, they having no calls or binding expressions to control them.  

COUNSEL:
H. W. Rogers, for the appellant, contended,

1. That the deposition of Jacob Brown, who was regularly [**9]  sworn on the survey, and who was proved to have been rendered incapable of attending the trial, by an attack of paralysis, was admissible evidence. Howard vs. Moale, et al, 2 Harr. and Johns. 372. Bowie vs. O'Neal, 5 Harr. and Johns. 226. Stewart vs. Mason, 3 Harr. and Johns. 507.

2. The record and plot in the ejectment brought in 1772, by Alexander Frazier, under whom the defendants claim, for the tract of land called Deep Point, against C. Howard and H. Rogers, the ancestor of the plaintiff, being offered to show the manner in which Frazier located Deep Point as his claim, at that time, was evidence by which the jury might be governed, in their finding in this case, and the County Court erred in rejecting it. Jarret vs. West, 1 Harr. and Johns. 503. Mason vs. Stewart, et al. 3 Harr. and Johns. 507. Ridgely vs. Ogle and Leonard, 4 Harr. and M'Hen. 123.

3. The direction of the Court that the patent for Deep Point, calls imperatively to bind on the line of Lunn's Lot, the whole extent of the first line of Deep Point, was erroneous; the binding expressions relating only to the beginning of Deep Point, and cannot be gratified to the whole extent of its first line, as that is [**10]  contradicted by the call itself, for the south west side of Baltimore Town.

Mayer, for the appellees.  

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

OPINIONBY:
BUCHANAN 

OPINION:

 [*60]  BUCHANAN, Ch. J., delivered the opinion of the Court.
This case is brought before us on three bills of exception taken at the trial; the first of which is to the refusal of the Court to permit a deposition, which was offered in evidence, to be read to the jury.
It is a settled rule of evidence in this State, that if a person who has been regularly sworn, and examined on the ground, upon a survey executed in an action of ejectment, dies before the cause is tried, or leaves the State, and goes to parts unknown, and without the reach of the process of the State, so that his attendance as a witness cannot be procured, his deposition so taken and returned with the plots, may be read in evidence at the trial from necessity, and being taken too by authority, and with the privilege and advantage of cross examination extended to the opposite party. Here the foundation laid for letting in the deposition of the witness, which appears to have been regularly taken [**11]  on the survey, and returned with the plots, was, that he had since become paralytic, and though regularly summoned as a witness, was unable to leave his house, or to speak so as to be understood. He was not indeed dead, nor had he gone out of the State, beyond the reach of the process of Baltimore County Court, in which the action was depending; but he was dead to all the purposes of giving evidence in a court of justice, and the benefit of his oral testimony 

 [*61]  at the bar, was as much lost to the party, as if he had, in fact, been dead, or had left the State.
The necessity, therefore, of resorting to his deposition, was the same as if he had been dead, and the reason being the same, we think it ought to have been admitted. And more strongly than if he had left the State; his inability to give evidence being produced by the act of God, leaving to the party requiring the benefit of it, no means of obtaining it, and without any negligence or fault on his part, which may not always be strictly the case, in relation to a witness who has left the State.
We differ, too, with the Court below, in the opinion presented by the second exception, and think that Court erred in [**12]  not permitting the appellant to give in evidence to the jury, the locations made by Alexander Frazier, in an action of Ejectment brought by him against Cornelius Howard and Henrietta Rogers, for the tract of land called Deep Point, as, and for, his claim and pretensions.
Henrietta Rogers was the patentee of the tract called Widow's Assistance, for which this suit was brought, and Philip Rogers, the lessor of the plaintiff, (who is the appellant,) is her son and heir-at-law, and claims under her. John Frazier, under whom Alexander Frazier claimed, was the patentee of Deep Point, and Raborg and Redding, the defendants, (who are the appellees,) claim under Alexander Frazier. The location of Deep Point, as made by Alexander Frazier, as and for his claim and pretension on the plats returned in the action, brought by him for that tract of land, against Howard and Henrietta Rogers, is transferred from those plots, to the plots returned in this cause. Deep Point being the elder tract, the right of the appellant to recover, depends, as that of Alexander Frazier did, in his action against Howard and Henrietta Rogers [**13]  , upon the true location of that tract. And if that suit had proceeded to trial and verdict, and this was a case between Henrietta Rogers and Alexander Frazier, it cannot be doubted that the plots returned in that case, 

 [*62]  and the location thereon by Frazier of Deep Point, might be given in evidence against him; it is the every day practice. And as little can it be doubted that the same evidence might be given by the heir-at-law of Henrietta Rogers, against those claiming under Alexander Frazier. But it seems to have been thought inadmissible, because Alexander Frazier did not prosecute his suit against Howard and Henrietta Rogers to a trial, but suffered a non-suit to be entered. The force of this objection we do not distinctly perceive; the evidence offered was not as a judgment on the merits against Frazier, but only to show his own views, in relation to the true location of the land he claimed. The declarations, or admissions of a party to a suit, may always be given in evidence against him; why then may not his more solemn acts, such as a deliberate location of a tract of land, claimed by him, upon plots returned in a suit brought [**14]  for the recovery of it, showing his own opinion of its true location, with which he may be supposed to be acquainted? We do not say it would be conclusive evidence against him, or those claiming under him, in any subsequent suit involving the location of the same land; it certainly would not. But we think it clearly admissible, as a fact evincing his sense at the time, touching the proper location, as much so as any other act, declaration, or admission of his could be.
The question presented by the third exception, arises on the construction of the patent for the tract of land called Deep Point. The expressions in the patent, to which we are called upon to give a construction, are "lying in the county aforesaid, on the head of the north west branch of Patapsco river, and joining the south west side of Baltimore town, and on a tract of land called Lunn's Lot, beginning at a bounded red oak tree, standing near a bounded locust post, which post is the beginning boundary of Baltimore town, and running thence, &c." the different lines, courses and distances without calls. It is contended, that the expressions used must be understood to mean 

 [*63]  "joining on Lunn's  [**15]   Lot," and that the patent for Deep Point must be so construed, as that by force of the word joining, Deep Point cannot be located so as to run into Lunn's Lot, but that the first line must, to its whole extent, run with, and adjoining to, an out line of Lunn's Lot; and it was so adjudged by Baltimore County Court.
But we do not perceive any thing in the language of the patent that we think will sustain such a construction. Where boundaries called for in a grant can be established, it is a settled principle of construction, that the courses and distances expressed, are to be disregarded, and the lines run to the boundaries, according to the calls. But what boundaries are called for here? Neither the first, nor any other line of Deep Point, has a call to the first or any other line of Lunn's Lot, but each is expressed to run a certain course and distance, without any call; and if it be admitted that Deep Point must be so located as to adjoin Lunn's Lot, what is there to confine that junction to the first, more than any other line? Or with what line of Lunn's Lot is the junction to be made? That, indeed, is not professed to be ascertained; but [**16]  the argument is, that the first line of Deep Point must join, and run its entire length with some out line of Lunn's Lot, which would seem to be entirely arbitrary. The part or line of Deep Point to join Lunn's Lot, is no more designated than the part or line of Lunn's Lot to be joined; and the expression joining in the patent, would be as fully gratified by a joining at one point, as at another. And if the tree called for as the beginning tree of Deep Point, does not stand on a line of Lunn's Lot, it would be impossible to run the first line of Deep Point in its whole extent with, and adjoining a line of the latter tract; but a course would have to be shaped to strike it, which would be to add a line to Deep Point, and to change the course and distance of the first line, without any express call to authorize it, and to leave the point of termination of that line altogether uncertain, in the place of the course and distance clearly 

 [*64]  expressed, contrary to the ordinary office of calls, which are usually preferred for greater certainty. But we think the patent for Deep Point will not admit of such a construction; and that the [**17]  word joining, as there used, is not of such imperative and binding force, as that, that tract of land must be so located as to join on Lunn's Lot, and cannot run into it. It seems to us that the expression used, makes no part of the description of the land itself, or of its metes and bounds, but was intended only as a general designatio loci, where it was supposed to lie; and that the beginning tree being ascertained, the location of the land from that tree, must be governed by the particular description given by courses and distances, they having no calls or binding expressions to control them.
JUDGMENT REVERSED, AND PROCEDENDO AWARDED.  

15 of 44 DOCUMENTS 

WILLIAMSON vs. CARNAN.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

1 G. & J. 184; 1829 Md. LEXIS 18 

December, 1829, Decided 

PRIOR HISTORY:
 [**1]   APPEALS from sundry orders of the Court of Chancery. The bill of complaint in this case, was filed on the 12th of May, 1826, in Baltimore County Court, sitting as a court of equity, by the complainants, (now appellees,) against the defendant, (the appellant,) and afterwards, under the act of 1824, ch. 196, at the instance of the defendant, was transmitted to the Court of Chancery. The bill states, that a certain road or highway in Baltimore county, usually known by the name of the Garrison Forest Road, has been a public road of Baltimore county, for upwards of fifty years, and for many years past has been duly and legally recognized as such, on the records of the Levy Court of said county, and has for a long time been used and travelled by the complainants, (residents and landholders in the said county,) and other inhabitants of the said county, as their nearest and most convenient road and way, from their respective farms and places of residence in the said county, to the city of Baltimore, the principal and most important market in the said county. That on the 18th of April, 1825, John M. Wyse, (one of the complainants,) was duly appointed supervisor of the said public road, by [**2]  the Levy Court of the said county, as by the warrant exhibited. That the said Wyse duly accepted the said appointment, and took upon himself the performance of the duties thereof, and that he hath never resigned his said appointment, nor hath any other person been appointed supervisor of the said road, or any part of it, of which he was so appointed; and as such supervisor, it was, and is his duty to clear, amend, and keep in good repair, the said public road, and not to permit or suffer any fallen trees, or other obstructions, within his power, to remain in or across the said road, whereby any wagon, &c. may be obstructed for the space of two days together. That the justices of the Levy Court of the said county, without any such application, proceedings or proof being made to and before the said Levy Court, as is and are required by law, and by the acts of Assembly in such case made and provided, and without any lawful authority or good right so to do, on the 10th of April, 1826, made and passed an order of the said Levy Court, to close and shut up a part of the aforesaid public road, to wit, all that part between a point or place near to a stream called the Western Run, where a new [**3]  road has been commenced, and the Baltimore and Reister's Town Turnpike Road, nearly opposite to John Armstrong's gate, in the said county; and although the complainants have applied for and obtained, and caused to be duly served, a writ of certiorari directed to the said justices of the Levy Court, commanding them to certify the record of the said order, and of the application and other proceedings on which the said order was made, with all things touching the same, to the judges of Baltimore County Court, as a court of common law, for the purpose of having the same heard, adjudged and determined as to law and justice, shall appertain; yet, so it is, that a certain David Williamson, junior, (the defendant and appellant,) well knowing that the said order of the Levy Court was irregularly and improperly passed, but pretending and alleging that the land over which the said road passed, belongs to him, although no part of it had ever been in his possession, and without any good right or lawful authority so to do, has proceeded by himself and his agents and servants, to obstruct and shut up the part of the said public road described in the writ of certiorari aforesaid, by erecting fences [**4]  and walls of wood and stone, and placing other obstructions on and across the said road, so as to entirely stop and prevent the complainants from travelling on or using the same, as they were heretofore accustomed, and yet have a right to do; thereby causing great inconvenience and injury to the complainants. That the said Wyse, when in pursuance of his duty as supervisor of the said road, was proceeding to remove the said fences and other obstructions, from and out of the said road, and clear the same, as by law directed, the said Williamson forcibly and with violence, prevented him from opening and clearing the said road, and wholly refused, and still refuses to permit him to perform his said duty as supervisor, and threatens to use personal violence to and against him, and every other person who shall attempt to open and clear the said road, or to remove any of the fences or other obstructions therefrom, or to travel on or over the said part of the public road so by him obstructed. All which actings, &c. The bill then enumerates certain interrogatories to be answered by the said Williamson, and concludes with a prayer for a writ of injunction, to be directed to the said Williamson,  [**5]  his counsellors, &c. commanding and enjoining him and every of them, that he and they do absolutely desist from further obstructing and continuing to obstruct and shut up, all that or any part of the public road called the Garrison Forest Road, as heretofore used and travelled on, &c. and particularly that part of the said road between, &c. and also that he and they do absolutely desist from preventing by force, &c. J. M. Wyse, the supervisor of the said road, or whosoever else shall be appointed supervisor of the said road, his agents, &c. from removing all obstructions whatever, from and out of the said road, and clearing, opening and repairing the same; and from preventing or hindering the complainants or their servants, or any other citizens of this state, from travelling and using the said road as a public highway, in the same manner as it has heretofore been used, until the further order of the court in the premises; prayer also for a subpoena to the said Williamson, &c.

The writ of injunction and subpoena were ordered, and issued accordingly, and were duly served by the sheriff of Baltimore county.

The answer of the defendant, filed on the 13th of May, 1826, states,  [**6]  that he is the owner and occupier of divers tracts or parts of tracts of land, adjacent to each other, situate, lying and being in Baltimore county, and binding in part on the eastern side of the Baltimore and Reister's Town Turnpike Road, between the sixth and seventh mile stones, and that the road mentioned in bill of complaint of the complainants, did heretofore pass transversely through the lands of the defendant to the said Turnpike Road, above the sixth mile stone, and the defendant conceiving himself greatly aggrieved and injured by the said location of the said road, made known to his neighbors, and amongst others, to several of the complainants, and especially to John M. Wyse, that he intended to make application to the Levy Court of Baltimore county to alter the location of the said road; and that on or about the 10th of February, 1823, the said Wyse, acting for and on behalf of the defendant, wrote and posted up the notice of an intended application to the Levy Court aforesaid. The answer then stated that affidavits were made by certain persons, that copies of the said notice were posted up at certain houses to which public resort was had, near the road in question, which [**7]  affidavits he exhibited. That on the 21st of February, 1823, the defendant made application, in writing, to the Levy Court aforesaid, that the said road might be altered; and that the application was presented by the said Wyse to the said court on behalf of the defendant, he the said Wyse, at the same time, urging to the court the propriety of granting the said application to the defendant, who was then absent from the state on business. That at March term, 1823, the said Carnan, &c. joint complainants in this cause, and a certain T. Ritter, by their petition in writing, addressed to the Levy Court aforesaid, set forth that they were not opposed to the private interest of the defendant in the said projected alteration; but asked the said court to require adequate security on the part of the defendant, to make the new piece of road every way good and substantial. That after the return of the defendant, on the 21st of July, 1823, he procured from the said Wyse and one T. H. Belt, then living in the neighborhood, a petition in writing, setting forth that it would be a public benefit to have the said road altered; and praying that the petition of this defendant might be granted. Which [**8]  said petition was presented to the said Levy Court. That on the 11th of August, 1823, the Levy Court caused a commission to be issued to Caleb Merryman, &c. three respectable free holders of the county, to locate a road as prayed for by this defendant. That the said commissioners met on the premises pursuant of the said commission; that on the 1st of September, 1823, the said Jehu McAllister, &c. three of the complainants, and others being then present, made a new location to the said road and caused a plot thereof to be made, and made return of all proceedings to the said Levy Court; and that on the 10th of April, 1826, the Levy Court passed an order that "all that part of the old Garrison road leading through the land of David Williamson, jun. commencing at the letter B, (marked on the plat returned by the commissioners heretofore appointed by this court to alter and straighten and amend the same) and from thence to the letter C, at the Reister's Town Turnpike road, also marked on the said plat, be shut up and closed; the same having been rendered useless by the alteration and amendment made on the said road by the said commissioners, adopted and approved by this court." That the [**9]  said road so altered as aforesaid, is in every respect a shorter and better road than the old road. That immediately on the passage of the said order last mentioned, by the Levy Court, this defendant, as he conceived he had a right to do, proceeded to connect his fences and enclose his lands, and had the same actually enclosed on the 10th of April last mentioned; and that since that time he has removed a part of the inner fence, whereby the bed of the old road is thrown into a field now in actual cultivation. He admits that on the 18th of April, 1825, the said Wyse, was appointed supervisor as hath been stated; but that the said appointments are annual appointments, and that it hath not been renewed; and that under the said order of the 10th of April last past, all that part of the said road as laid down upon the said plat from B to C, which passed through the lands of the defendant, ceased to be a public road, if the same ever was a public road. The defendant charges it to be true that neither the public good, nor their own advantage, but private malice and resentment produced by other causes than the supposed injury from the alteration of the said road, have induced the said Wyse [**10]  and some of his confederates to make this attempt to injure the defendant. That each and every one of the complainants hath other and better roads to mill, to market and to church, than the road heretofore passing through the farm of the defendant. He denies that the said road has been used as a public road for upwards of fifty years, or that there is any record in the Levy Court calling for a public road leading through the lands of this defendant. He admits that an application hath been made for a certiorari as hath been stated; but he saith that the road passing through his farm had been closed up and a part of the inner enclosures removed, before any application for the same. That the re-opening of the same, particularly at this time, would be attended with great and irreparable loss and injury to the defendant. He admits that after he had closed the said road as aforesaid, the said Wyse, not in pursuance of his duty of supervisor, as is falsely charged in the complainants bill, he the said Wyse at the time well knowing of the order of the Levy Court of the 10th of April last, under and from whom he derived his said pretended authority, but for the sole purpose of gratifying his [**11]  malice and resentment against the defendant, did attempt to pull down and remove the fence of the defendant; and the defendant possessing the power, and feeling himself justified in resisting such lawless invasion of his rights, did prevent the said Wyse from passing over and through his farm. That no person except the said Wyse, and M. Turner (also one of the complainants,) which said Wyse is not at this time a freeholder in the said county, have ever attempted or requested permission to pass through the farm of the defendant--another and a better road having been previously provided. He admits he has closed the road referred to from B to C as designated on the plat. He also admits that for some years, but cannot state how many, the said road had been occasionally used by the neighborhood; and that he claims title to the land over and to the land on both sides of which the said road passes, by purchase, and has been in possession thereof several years. He denies all and all manner of combination, &c. Prayer that the said injunction may be dissolved, &c.

The defendant exhibited the several documents, &c. referred to in his answer.

[SEE PLAT IN ORIGINAL]

The proceedings [**12]  having been transmitted to the Court of Chancery as before mentioned, the defendant on the 15th of May, 1826, by his petition to the Chancellor, stated, that the continuance of the injunction heretofore issued will be attended with great and irreparable damage, loss and injury to the petitioner. He therefore prays, that the Chancellor will pass an order limiting an early day for the hearing of the motion, (which he had entered on the docket,) to dissolve the injunction.

BLAND, Chancellor, 15th May, 1826. In cases where the Chancellor entertains a doubt as to the propriety of granting an injunction at all, or where, when granted, it operates in restraint of public commissioners for the opening a road, street, or the like; or it altogether stops, or retards, or embarrasses the operation of a large manufacturing establishment, or restrains a public ferry, in these and some other cases of a very peculiar nature, it has been the practice in the first instance, or on application, to appoint a very early day for hearing of the motion for a dissolution of the injunction, and that too, either with or without answer. But according to the defendant's own showing, in this case, this injunction [**13]  operates in restraint of a right which he has but recently acquired, or has not long decidedly and exclusively enjoyed. There being, then, nothing in this case of so peculiar a nature as to require a departure from the general rule, it must, therefore, as in other cases where individuals only are restrained, take the course of the court; and the foregoing petition is hereby dismissed with costs.

Afterwards, on the 25th of May, 1826, the Chancellor, on motion of the defendant, passed an order, that the motion to dissolve the injunction, stand for hearing at the next term, provided a copy of the order be served on the complainants, or their solicitor before, &c. The copy was duly served.

BLAND, Chancellor, (September term, 1826.) This case standing ready for hearing, the motion to dissolve the injunction, and the solicitors for each of the parties having been heard, the proceedings were read and considered.

There can be no doubt, from the act of 1821, ch. 152, that the Levy Court of Baltimore county have the jurisdiction and power of "opening a new road, or of vacating or altering an old road." Whether that tribunal has, in this instance, proceeded to exercise its jurisdiction [**14]  upon this subject correctly or erroneously; or has, in any respect, neglected or disregarded the prescribed modes and forms, is not for the Chancellor to determine; because he has no revising or superintending authority over it.

The object of the injunction was not to touch or impeach the jurisdiction of the Levy Court; but to stop the further proceedings of the party, upon the ground, that there were some circumstances in the case which showed, that he ought not to be permitted to do the act complained of, until it had been finally directed or sanctioned by that jurisdiction, or superior and controlling authority.

It appears, that the Levy Court, on the 10th of April, 1826, passed an order directing the road in question to be closed; and also, that on the 14th of the same month, the complainants obtained a writ of certiorari to remove the proceedings of the Levy Court into the County Court for their revision. It does not distinctly appear, that the order of the Levy Court was of such a nature, that its execution could not be suspended by a writ of certiorari, until the matter thereof could be heard and decided upon by the County Court. It is no where in the bill or answer,  [**15]  spoken of or stated to be an order of that character. And whether the County Court have the power to suspend, revise or reverse such an order, is not for this court to determine. That the writ of certiorari did issue, has been admitted; and for aught that appears, is still depending. It appears that the defendant did obstruct the old road, while the question for vacating it, was still sub judice; after the Levy Court had passed their order, but before it had been affirmed or decided upon by the County Court, to which it had been carried by the writ of certiorari; and, therefore, he was properly restrained by the injunction. For although this court has no power to revise the proceedings or to correct the errors of the Levy Court, or the County Court; yet, it will restrain a party from doing an act injurious to an individual, or which may be prejudicial as a public nuisance, pending any judicial proceedings before those tribunals, by which the authority to do the act, or its lawfulness is to be determined. If the County Court shall determine upon the return to the writ of certiorari, that the order of the Levy Court of the 10th of April, was final and conclusive; or that it be affirmed;  [**16]  or that the writ of certiorari be quashed, then the defendant will stand justified under that order, in going on to obstruct and close the old road, in question, so far as it passes over his land; and this injunction must be dissolved. If on the contrary, the County Court shall reverse or annul the order of the Levy Court, the restraint upon the defendant must be continued. It is proper that the parties should be held in their present situation to await that decision.--Ordered, that the injunction be continued until the hearing, or further order.

At December term, 1827, the Defendant, by his petition to the Chancellor, prayed leave to amend his answer, &c. But the Chancellor refused the leave, and dismissed the petition. At the same term, the complainants, by their petition, stated that it would appear by the annexed affidavits, that the defendant had totally disregarded the injunction, and caused the road therein mentioned, to be obstructed, &c. Prayer for an attachment against the defendant, and that he may be compelled to place the same road in the same situation as it was previously to his closing the same on the 13th of the present month.

An attachment was accordingly [**17]  ordered and issued returnable forthwith; and the sheriff returned the said writ, that he had attached the defendant.

At March term, 1828, the complainants again by their petition stated, that the defendant, disregarding the said injunctions, did by his agents, servants and himself, caused the road mentioned in the injunction, to be obstructed on or about the 13th of December last, by causing fences, &c. to be erected, and placing other obstructions on and across the same, &c. as will appear by the affidavits filed on the last term. That although an attachment issued, and was duly served on the defendant, it had not had the effect of causing him to remove the obstructions then existing; but as would appear by the annexed affidavit, he had additionally obstructed the said road, &c. Prayer for an attachment against the defendant, and that he be compelled to place the said road in the same situation as it was previously to his closing the same on or about the 13th of December last.

An attachment was again ordered and issued, returnable forthwith; and was duly served, &c. The defendant appeared and filed his petition, in which he stated, that the proceedings of the Levy Court [**18]  in reference to the said road, having been set aside by Baltimore County Court, upon the hearing and examination thereof, under the writ of certiorari, which had been issued, &c. as will appear by a transcript of the proceedings exhibited; not upon the merits of the case, but for defect of form, as will appear by a copy of the opinion of the said court. That the petitioner being advised that, that part of the said road called the Garrison Forest Road, mentioned in the proceedings, having become a public road and highway, he, together with other petitioners, taxable inhabitants of the county, made a new application to the Levy Court, to alter and close the said part of the said road; and that the complainants had notice thereof, and attended a meeting of the commissioners appointed under the said application, and opposed the confirmation of the return made by the said commissioners. That on the 13th of December, 1827, an order was passed by the commissioners of the county to whom the powers and duties heretofore exercised by the Levy Court, have been transferred, that all that part of the before mentioned road be shut up and closed; and that the petitioner, or any other person or persons,  [**19]  through whose lands the said old road may have been departed from, by such altering, &c. are authorized to shut up and close the same, as by reference to a copy of the said proceedings exhibited will appear. That the complainants had knowledge of the said order of the said commissioners, and that the said order being final and conclusive without appeal, and no writ of certiorari having been applied for, and the said road so authorized to be closed, passing transversely through the farm of the petitioner; and the complainants, by the altering of the said road, having another and a better and shorter road, and the petitioner being greatly aggrieved by the passing of the said road through his lands, and conceiving himself fully authorized to do so by the said order, he, by virtue of the said order, and not as he avers, in contempt of the court, did proceed to close the said road; and that he shut up and closed the same without force, &c. and before any attachment had issued against him. That since he has closed the said road, he hath removed his inner fences, and planted an orchard on either side of and through the bed of the said road; and that the removal of his fences will be attended [**20]  with great and irreparable damage to him. Prayer that the said road may be suffered to remain closed; and that he may be released from custody, and that the attachment may be quashed.

Among the several exhibits filed with the preceding petition, was the following, being the opinion of Baltimore County Court, in May, 1827, on deciding on the certiorari which had been issued.

ARCHER, Ch. J. This court assumes to itself no power or authority to review the judgment of the Levy Court, as to the fact, whether the public convenience required the alteration in the road mentioned in the proceedings in this case. The Levy Court is the sole and proper tribunal, to which the laws have confided the adjudication of that matter, and doubtlessly, they have upon this point made a correct determination. But whether they have been right or wrong, is not my province to determine. I cannot sit as an appellate court, to review their judgment. The laws in this respect have assigned to me other duties, to the performance of which I proceed. I have carefully examined all the authorities referred to, together with the acts of the General Assembly, conferring powers on the Levy Court, and the constitution [**21]  and laws giving powers to this court, and will briefly present the conclusions to which I have arrived. It would have been satisfactory to the parties concerned, as well as gratifying to myself, to have presented particularly the reasons by which I have been led to these conclusions; but the pressure of business at the close of the term, gives me scarcely more leisure than is indispensably necessary to examine and adjudge the matter submitted to me. And in this case, I should not have reduced any thing to writing, but from a belief that some of the conclusions to which I have arrived, might, upon future occasions, be useful to the subordinate tribunals, as a guide in similar matters, which might come before them; and at the same time, inform them and others interested, of the powers and obligations of this court, in relation to inferior judicial jurisdictions and their proceedings. In this case the following principles are adjudged and settled by this court.

1. That every inferior jurisdiction, whether created by a public or a private law, is subject to have its proceedings inspected either by appeal or by certiorari and mandamus, where such jurisdiction acts judicially. 1 Salk. 146.  [**22]  1 Ld. Raym. 580. They will be coerced to perform their duties, and restrained and confined within their proper limits as prescribed by law.

2. That where these jurisdictions act in a summary manner, or in a new course different from the common law, a certiorari is the peculiar and appropriate remedy; as in such a case, a writ of error will not lie. Greenvelt vs. Burwell, 1 Salk. 263. Com. Rep. 76. Israel vs. Allen, decided in Baltimore County Court.

3. That a certiorari does not go to try the merits of the question, but to see whether the limited jurisdictions have exceeded their bounds. 2 Burr. 1042.

4. That a certiorari will lie after judgment, where the jurisdiction proceeds in a summary manner, and in a course different from the common law. 1 Salk. 263. Com. Dig. 76. 2 Burr. 1042.

5. That a certiorari may issue even after judgment executed, where a limited authority has been transcended by inferior jurisdictions, in cases where no writ of error lies, for the purpose of quashing their proceedings.

6. That in this case, the Levy Court of Baltimore County, in their power to open and alter roads, is a tribunal of limited [**23]  jurisdiction, proceeding in a summary method, and in a course unknown to the common law; and that in their confirmation of the return of the commissioners, under the act of 1821, ch. 152, in relation to roads, they act judicially and not ministerially.

7. That without the notice required by the act of 1794, ch. 52, they have no power to open, amend, alter, change, widen or straighten a road.

8. That until a number of inhabitants petition for a road under the act of 1821, ch. 152, they have no power to appoint a commissioner, or to pronounce a judgment on any return of commissioners.

9. That a number of inhabitants within the meaning of the law, did not petition the Levy Court in this case, till July, 1823.

10. That the notice required by law, should have corresponded with the time when a legal petition was first preferred to the Levy Court.

11. That the notice being to March term, and no petition within the meaning of the law until July, the notice was not such as is required by law.

12. That this court cannot presume a notice in conformity with law, when the papers and record returned show an illegal and insufficient one.

13. That there being no [**24]  notice within the meaning of the law conferring power on the Levy Court, the whole proceedings are coram non judice and void.

14. That the judgments and orders of the Levy Court of the 7th of October, 1823, and of the 10th of April, 1826, ought to be, and are accordingly quashed.

The defendant by his petition to the Chancellor, prayed that the injunction might be dissolved. The Chancellor directed that the motion for dissolving the injunction stand for hearing on the 13th of May following; provided a copy of his order, &c. be served on the complainants on or before, &c.

The complainants then moved the court to pass an order committing the defendant to the gaol of Anne Arundel county, for a contempt by him committed, in not obeying the injunction.

BLAND, Chancellor, (23d of April, 1828.) In this case, David Williamson having been brought into court on the said attachment, and having made answer on oath to the alleged violation of the injunction; and the solicitors of the parties having been heard; and it appearing, that the acts done in violation of the injunction were done under erroneous advice, and an apprehension that he had, by other judicial proceedings of [**25]  another court, been authorized to do the same--Ordered, that the said Williamson do now, forthwith, and with the least possible delay, entirely remove and take away all fences, stones, timber, trees, and all manner of hindrances and obstructions, which he, his agents or servants may have placed or put in or upon the said road, in the proceedings mentioned; and which he, his agent or servants were prohibited from placing or putting in or upon the said road by the said injunction. Further ordered, that the said Williamson pay all the costs of the proceedings in relation to this process of attachment; and that he stand committed until the said costs are paid.

The defendant, after paying the said costs, appealed from the above order to this court, and entered into bond with security (which was approved) for prosecuting the appeal.

The complainants, on the 5th of May, 1828, by their petition, stated, that since the order of the Chancellor of the 23d of April, 1828, the defendant had not removed the obstructions from the said road, and had declared and avowed that he would not obey the said order, and that he would not remove, or permit to be removed the said obstructions, &c.  [**26]  Prayer for an attachment against the defendant, to answer for the contempt so by him committed and wilfully persisted in, contrary to this court, and for the continuance of the breach of the said injunction. And also, that by a special order of the sheriff of Baltimore county, may be authorized and directed to cause all the said obstructions, &c. to be removed, and the said road to be opened and cleared at the expense of the defendant, &c.

An attachment was ordered and issued accordingly, returnable forthwith; and was, on the 13th of May, 1828, returned by the sheriff, that he had attached the defendant, and had him ready in court to answer, &c. The complainants then moved the court that the defendant be committed to the gaol of Anne Arundel county, &c. And at the same time, the complainants, by their suggestion in writing, stated that the defendant, before the filing of his petition, and notice of motion to dissolve the injunction, had committed a breach of the injunction, and at the time of filing his said petition, was actually in custody under attachment for his contempt in committing such breach; and so continued in custody until the order of the 23d of April was passed,  [**27]  which order he has not obeyed; but has wilfully, and in open contempt of this court continued, and still continues his breach of the said injunction. They therefore pray that no motion on behalf of the defendant, to dissolve the said injunction, may be heard, entertained or considered, while he is thus acting in open and wilful contempt of this court, its orders and process. That proceedings in regard to the opening and keeping open the said road as a public highway, are now depending before the commissioners of Baltimore county, the lawful and proper tribunal to decide on the shutting up or continuing open the said road in the first instance; subject nevertheless, to have their proceedings in relation thereto, reviewed and reversed, or confirmed by the County Court. Prayer that the motion to dissolve the injunction, may be overruled, &c.

The defendant, on the 14th of May, 1828, in his answer to the petition of the complainants of the 5th of May, 1828, denies the charge in the petition that he will not permit to be removed the said obstructions, &c. so by him caused to be placed in and upon the said road. That the injunction did not require any act to be done by him. He is not [**28]  conscious of having violated the injunction until December, 1827. He refers to the order of the 2d of December, 1826, showing the ground on which the court originally interfered, and refused then to dissolve the injunction. By that order he was apprized that if "the County Court shall reverse or annul the order of the Levy Court, the restraint upon the defendant must be continued." He admits after the decision of the County Court, he did not expect a dissolution of the injunction. It was the fault of the complainants that it was not made perpetual. The answer then sets out the proceedings of the Commissioners of the County, under the defendants new application, &c. and avers that the order of the Commissioners justified his acts of December, 1827, and would not have been any contempt of this court, even if the injunction had been made perpetual. The only effect of a perpetual injunction, would have been to prevent the defendant from claiming any right to obstruct the road in virtue of the order of the Levy Court, which had been rescinded, and could not deprive him of the right of filing a second petition, &c. He, therefore, in the month of December, 1827, did cause fences to be erected [**29]  across the said road, as stated in the complainants several petitions of the 4th of January and 9th of April last, and in which petitions the complainants for the first time prayed the court, among other things, to compel the defendant to place the said road in the same situation that it was previous to his closing the same, "on or about the 13th of December last." That the acts done on or about the 13th of December last, are the only breaches of the injunction of which the complainants at the time of filing their petition had complained. On the answer of the defendant to the said petition, the Chancellor proceeded to pass his decree upon the whole matter thereof. He refers to the decree of the 23d of April, 1828, and insists that even if the erection of such fences and obstructions as these charged in the several petitions of the 4th of January and 9th of April, could be considered a contempt of the court, he is not now to answer for it, as he has already been before the court to answer the said charges, and the same have been adjudicated. The said petitions prayed that the defendant should be compelled to place the said road in the same situation it was on or about the 13th of December [**30]  last, and did not require, nay, may be construed to forbid him, to remove any obstructions, &c. of an earlier date--none others had he ever been required to remove. Those which had been placed there before the granting of the injunction, the court upon the ex parte application of the complainants, could not command him to remove. The language of the injunction was to desist, and did not and could not command him to do. That the first order of this court, whether in the form of an injunction or of a decree in the premises, commanding the defendant to remove or take away any fence, stones, &c. is to be found in the decree of the 23d of April, 1828. This decree the defendant admits has not been executed by him. He has prayed an appeal from it; has given bond with approved security, and insists that the same operates a stay of all further proceedings until the same is affirmed, or the defendant fails to prosecute it. That the execution of the decree at this time would deprive him of every benefit, that by a reversal of it, should it be reversed, he would gain, &c. Prayer to be dismissed.

BLAND, Chancellor, (20th of May, 1828.) The defendant having been brought before the court in [**31]  custody, by an attachment upon a charge of contempt, in having committed a breach of the injunction heretofore granted in this case; and the motion for a dissolution of the injunction standing ready for hearing, the solicitors of the parties were heard in relation to both of those matters, and the proceedings read and considered.

A brief review of this case seems to be necessary to a correct understanding of the matters now to be decided upon. [The Chancellor's opinion then stated the facts, proceedings, and views of the case, as before set out, and said,] it was to this state of the pleadings and to arguments of this nature, I addressed myself in the order of the 2d of December, 1826, by which the injunction was continued until the hearing on further order. The defendant, it will be seen by his answer and his motion thereon for a dissolution, did not, as it would seem, then consider an order of the Levy Court for shutting up the road, (even admitting it to have been in all respects a final, conclusive and irreversible judgment,) as having of itself the effect of annulling the injunction, or as virtually dissolving it, without any motion or application to this court for that [**32]  purpose. No such notion had been in any manner intimated or suggested, either in the pleadings or arguments as they were then presented to this court; and it never once occurred to me, at the time of uniting that order, that any such notion ever had been, or would be advanced or attempted to be sustained. Indeed so far from it, the contrary is clearly deducible from the course pursued by the defendant himself. For, although he did contend, that the order of the Levy Court for closing the road was conclusive; yet, he deemed it necessary, and then came here to ask a dissolution of the injunction as soon as practicable; because, until it was dissolved by this court, he could not take the benefit of that legal authority which he had thus obtained from a competent tribunal; and as he distinctly alleged, the continuance of it would be attended with great and irreparable damage and loss to him. Thus expressly admitting, that so long as the injunction remained in full force, and unrevoked by this court itself, he would not be justified in disobeying it by any authority which he could obtain from any other tribunal.

The granting of the injunction was predicated upon the fact, that the [**33]  specified lands of the defendant were charged with a public servitude as a highway; the defendant bottomed his prayer to be relieved from the restraint, upon the allegation, that it had been finally discharged from that servitude; he failed to sustain his allegation; and the injunction was continued.

The principle, that an injunction once granted, continues in full force until dissolved by the court by which it has been awarded, is so entirely obvious, and so necessary to preserve harmony among the several branches of the government; and to prevent any one tribunal from being brought into collision with the legislature, or any other court of justice which may have the power to exercise authority upon the subject to which the injunction relates, that I had supposed it never had been, or would be questioned by any one. And my order of the 2d of December, 1826, was written under this strong impression. The parties, by the proceedings as they then stood, looked to the final determination upon the proceedings of the Levy Court by the County Court, as that decision by which the right to the highway in question, was to be put at rest; and, therefore, I said, that they must be held in [**34]  their then situation, to await that decision. But I neither intimated nor supposed, that the parties were, or could be restrained from pursuing any legal course whatever, for the purpose of having the right to this public road finally determined. I was aware, that if it should be in any way legally closed, either by the legislative or judicial authority, this defendant would be entitled to be relieved from the restraint which had been imposed upon him. But, I did not for a moment suppose, that this defendant, after the obligation he had admitted himself to be under to obey the injunction, notwithstanding the legal authority he had, as he said, obtained, would at any time afterwards, attempt to disobey it, because of any other legal authority which he might believe he had obtained in any other manner than that to which he then especially referred. And, it is clear from what I then said, that I expected to hear again from the defendant as soon as he had, in any manner whatever, succeeded in obtaining a final and complete legal authority for closing the road, which the injunction had thus restrained him from obstructing. In short, the whole course of proceedings, antecedently to this [**35]  period, so far from warranting the inference that the injunction could be virtually dissolved by any other judicial proceedings, shows, that it was, notwithstanding any such proceedings, to be considered as in full force until dissolved by this court itself.

On the 3d of January last, the defendant filed a petition, in which he states, that the proceedings of the Levy Court referred to in the bill, had been taken by certiorari to the County Court, and by that court set aside; that he had made another application, and had obtained an order for closing this road; which order, he says, being final and conclusive without appeal, and he being greatly aggrieved by the passing of the old road over his lands, and conceiving himself fully authorized so to do, by that order, did in virtue thereof, proceed to close it from A to B, as designated on the plot, [returned under the last order for closing the road,] and that he shut it up, without force, and without opposition from any one. And then concludes by asking leave to file an amended answer, setting forth the several matters therein stated, and that the bill be dismissed upon such terms as may seem just. This petition not being sworn [**36]  to, and, even if it had been sustained by an affidavit, laying no proper ground for leave to amend the answer, was, by an order passed on the next day, dismissed with costs.

On the same 3d of January last, the plaintiffs also filed a petition with sundry affidavits, showing that the road had been obstructed and closed by the defendant, in disobedience of the injunction, and praying for an attachment, which was ordered, issued, served, and returned executed. But the plaintiffs, as it seems, suffered it to pass off without asking to have any thing done upon it. On the 9th of April last, the plaintiffs again asked an attachment against the defendant for disobeying the injunction, which was awarded; and on the 22d of April last, he was brought before the court, in custody, when he filed his petition on oath, with a reference to the bill of injunction, answer, order and attachment for contempt. In this petition he sets forth, that the proceedings of the Levy Court, which were removed by certiorari to the Baltimore County Court, having been there considered and quashed, he had afterwards made a new application to the Levy Court, and had obtained an order to shut up the road in question;  [**37]  which order was final and conclusive, without appeal--no writ of certiorari having been applied for. That conceiving himself fully authorized to close the old road, so far as it passed over his land, and not in contempt of this court, he did shut it up accordingly. Whereupon, he prays that the road may be suffered to remain closed, that he may be released from custody; and that the attachment may be quashed.

It appears then, by the defendant's petitions of the 3d of January and 22d of April, that he had conceived himself fully and legally authorized to close this highway by virtue of the order of the Levy Court, notwithstanding the injunction of this court, which had positively prohibited him from closing or obstructing it in any way whatever; or, in other words, that the final order he had obtained, had virtually, yet effectually and completely dissolved and annulled the injunction heretofore granted by this court. The defendant made no application or motion to have the injunction dissolved after the 2d of December, 1826, until the 22d of April last. He has not even deigned to speak of the injunction, in the body of either of those petitions, in which he acknowledges and attempts [**38]  to justify the closing of the road; and yet, in the first, he asks to be permitted to file an amended answer, and to have the bill dismissed; and in the second, he prays that the road may remain closed; and that he may be discharged from the attachment. If the prayer of his first petition had been literally and fully granted, and the bill dismissed; yet, that would not have dissolved the injunction, unless it had been so expressly ordered. By the second petition, this court is, in effect, gravely asked to make a most extraordinary transit over all its own proceedings, into those of the Levy Court; to approve, and act upon them, and totally disregard its own. For, an order of this court, as prayed, that the road should be suffered to remain closed, and that the defendant should be discharged from the attachment, most manifestly, could stand upon no other foundation than a complete affirmance of the proceedings of the Levy Court, and an entire disregard of all the previous proceedings of this court. I never before heard of such an indirect mode of obtaining a virtual dissolution of an injunction, by bringing to bear upon it a judicial decision of another, and totally different tribunal,  [**39]  not exercising, or having any appellate jurisdiction over the court, whence the injunction issued. An injunction, emanating from a competent authority, is a command of the law; and the citizen is, as I have always understood, bound to yield implicit obedience, until the restriction has been removed by the authority which imposed it. But, if the position assumed by this defendant be correct, then, instead of obeying, or moving to dissolve an injunction, a party may avail himself of various modes of getting around, or under, or over it, without being chargeable with the slightest contempt of the law. The judgment of this court, continuing the injunction, was founded upon the proof or admission of certain facts, after hearing both parties, as to the very point, whether it ought to be continued or not. But, if it could be indirectly and virtually dissolved by a judgment of the Levy Court, upon a different case, then it might be evaded by one party, without hearing the opposite party as to the former, or any new facts, or equity which he might be able to show, as a most solid ground for its further continuance. The court, commanding obedience to an injunction, might thus be brought into [**40]  collision with another court, alleged to have sanctioned, or, as this defendant has said, ratified the acts in disobedience of it; in which conflict of jurisdiction, the rights of persons and of property, it is evident must suffer; while he who produced the scuffle, might escape with the spoil. Surely, such principles, which, to say the least of them, lead so directly to disorder and confusion, ought not to be tolerated for a moment. It was upon these considerations, that I passed the order of the 23d of April last, from which the defendant has appealed, and given bond for the prosecution of his appeal. After I had in open court, addressing myself to the argument that had been urged in support of the defendant's petition of the 22d of April last, declared, that the order of the Levy Court could not be allowed to operate as a virtual dissolution of the injunction; that it could only be dissolved by this court itself, on motion, after hearing the parties; and that until so dissolved it must be considered as in full force, and would be enforced by attachment; the defendant, on the same 22d of April, filed his petition praying for a dissolution of it, upon which the court, on that day,  [**41]  passed the order appointing the 13th inst. for the hearing of the motion to dissolve, on notice being given as directed. On the 5th of the present month, the plaintiffs filed their petition, with an affidavit, in which it is stated, that the defendant had violated the injunction by causing obstructions to be erected across the road, which he had not removed as he ought to have done, in obedience to the order of the 23d of April last; whereupon they prayed that an attachment might be issued against the defendant, "to answer for the contempt so by him committed and wilfully persisted in, contrary to the order of this court; and for the continuance of the breach of the said injunction." And they further prayed, that the sheriff of Baltimore County might, by a special order, be directed to remove the obstructions complained of. The attachment was ordered as prayed; upon which the defendant was brought before the court in custody, on the 13th instant, the day appointed for hearing the motion to dissolve the injunction; and he then moved to quash the attachment; because an appeal had been prayed and bond given which had suspended the further proceedings of this court. On the next day, the [**42]  14th instant, the defendant filed an answer on oath to the alleged contempt; in which he claims a discharge upon two grounds--First, that the injunction only operated as a restraint from closing the road, under and by virtue of the authority of the Levy Court, referred to in the bill; but did not prohibit him from shutting it up under any other authority than the one mentioned; and secondly, that the whole subject matter having been heretofore brought before the court, and having been embraced and adjudicated upon by the order of the 23d of April last, has been suspended by the appeal from that order; and cannot, therefore, be now in any manner treated as a contempt of this court.

The bill upon which the injunction was granted, as is usual in such bills, recites the colorable or pretended legal authority under which the defendant had obstructed the specified highway, contrary to law; and avers, that the pretended legal authority of the Levy Court, under which the defendant had assumed the right to act, was erroneous, and that its validity was a question depending, and then to be decided upon by a superior tribunal; and hence, the defendant having then no authority whatever to [**43]  close the road, it thereupon prays, in general terms, that he may be altogether enjoined from doing so. There is absolutely nothing in the prayer of the bill, nor in the writ of injunction itself, which limits the prohibition to a shutting up under the order of the Levy Court, or under any other particular and specified authority whatever. Neither the terms of the prayer, nor of the writ make any allusion whatever to any judicial proceedings of any kind then depending, or thereafter to be instituted. The restriction imposed upon the defendant is as general and comprehensive as it could well be expressed. The clear and unequivocal sense of which is, that the road shall continue to be considered as a public road or highway, which the defendant shall not be permitted to close until he shall produce and show to this court, that he had obtained a legal authority to do so. Therefore, the only question now is, whether the acts done by this defendant are such as he was prohibited from doing by the injunction? Those acts are the erection of obstructions upon this highway; now those are the very acts which this injunction does most positively and distinctly prohibit. It is true, that if the [**44]  injunction had prohibited acts of one description from being done, and the party restrained had done acts of another description, he could not, as the defendant has alleged, be charged with a contempt. The injunction did not prohibit him or any other person from instituting any proceedings, or making any application for the purpose of obtaining a legal authority to close this road; and consequently such acts of the defendant cannot be regarded as a breach of the injunction. So, too, if any other person had obtained an authority to close this road, such person might have proceeded, at once, to shut it up; but, most unquestionably, this defendant cannot be allowed to do so, upon his obtaining an authority to close it, until he has first shown that authority to this court; and upon motion and notice to the opposite party, according to the established practice, obtained a dissolution of that general and unqualified restraint which has been imposed upon him by the injunction. This first cause shown by the defendant, for his discharge, being based upon an assumed position not warranted by the proceedings, is therefore deemed insufficient. Indeed, the showing itself seems tacitly to admit [**45]  the correctness of the charge of contempt, but for that qualification of the injunction which it has assumed, and which has in fact, no real existence.

The second ground upon which the defendant rests his claim to be discharged, is, that this whole subject has been taken from this court to the Court of Appeals. I feel no disposition to meddle in any way whatever, with appeals from this court; and certainly shall not, knowingly or intentionally, check, control, or retard them in any manner or form, either directly or indirectly. And, therefore, until otherwise directed by the Court of Appeals, I admit, that the appeal has entirely suspended the power of this court to execute the order of the 23d of April last; and consequently, that the defendant cannot now be charged here with any contempt for a disobedience of that order. With regard to the prayer of the plaintiffs' petition of the 5th of May, instant, that the sheriff may be ordered to remove the obstructions that have been placed in this road, I deem it unnecessary, upon this occasion, to express any opinion whatever. But the injunction has not yet been dissolved, and there has been no appeal or other proceeding by which the [**46]  enforcing of that command has been waived or suspended. The petition of the plaintiffs of the 5th instant, and the attachment awarded thereon, charges the defendant with contempt by acts "committed and wilfully persisted in contrary to the order." And also by "the continuance of the breach of said injunction;" or, in other words, "in disobeying the injunction and order heretofore issued in this cause." The language of the writ of attachment is, as usual, general; but so far as it is calculated to embrace a charge of disobeying the order appealed from, it is considered as improper. The defendant, as to so much, must be discharged, and that writ, so far, is hereby quashed.

The question, therefore, is reduced to this, whether or not the appeal from the order of the 23d of April last, has suspended the authority of this court to enforce obedience to the injunction? The order of the 23d of April, is an adjudication upon the subject matter then submitted to the court for its decision, and nothing more. The defendant had been brought before the court upon a charge of contempt, for having violated its injunction; and upon that charge it pronounced that judgment. The court had the power [**47]  to have committed the defendant to prison, and to have imposed a fine upon him; but, considering the erroneous advice and misapprehension under which he had acted, it imposed the lightest punishment it could select in application to the circumstances and nature of the case--which was, that the defendant should immediately himself be at the expense and trouble of removing the obstructions, and should pay the costs of the attachment. But suppose this order had been literally obeyed, and the defendant had afterwards erected other obstructions on this road, during the continuance of the injunction, the court, on application, would certainly have had him brought before it, and punished for this new contempt; or if the defendant had neither obeyed, nor appealed from the order, then, on application, he might have been attached and punished, as well for his failure to remove the obstructions as ordered, as for the continuance of them in disobedience of the injunction. Every continuance of a nuisance, or trespass, is a new and additional subject of complaint, and each continuance may at law be made the subject of a separate prosecution or suit. The not removing the obstructions, and the continuance [**48]  of them are clearly two distinct subjects. The first is embraced by the order which has been suspended by the appeal. But the second can only be considered as a violation of the injunction, which has been in no way dissolved or suspended; because, it was that alone, and not the order, which prohibited the continuance of the obstruction. Every continuance of the obstructions is a new and distinct ground for an attachment. All contempt for the continuance of these obstructions, antecedent to the order of the 23d of April, and also during such reasonable time thereafter, within which the defendant might have complied with it, are embraced under, and to be atoned for by him, upon the terms of that order. But the specified continuances of them since, are totally distinct subjects of complaint; are new violations of that injunction, which is admitted to be in full force; and are now to be treated and considered as if nothing had occurred in disobedience of it, prior to that time. I am, therefore, of opinion, that this second cause upon which the defendant rests his claim to be discharged, so far as relates to the continuance of the obstructions, after they might have been removed as above [**49]  mentioned, is as entirely unfounded as the first.

The plaintiffs have, by their petition, suggested, and also urged in argument, that the defendant, while in contempt, is not in a situation to move for a dissolution of the injunction; that his petition, asking to have a day appointed to hear a motion for a dissolution, having been filed before he had cleared himself of the contempt wherewith he then stood charged, was irregular, and that the motion cannot now be heard, until he has cleared himself of the present charges.

It is certainly true, as a general rule, that a party will not be permitted to come in and claim the benefit of that judicial authority, which he has contemned and set at naught. He must recognize its power by obedience, and clear away all imputations of contempt, before he can be allowed to ask from it any relief. But the circumstances of this case are evidently very peculiar. The nature and extent of the punishment to be imposed upon the defendant, for the breach of the injunction, with which he now stands charged, ought, and must depend, in some degree, upon the determination, whether the injunction is to be continued or not. If it is dissolved, a mere [**50]  corrective fine, proportioned to the disobedience complained of, will be sufficient. If it is continued, then he should, at the least, as before, be ordered to remove the obstructions; to pay all the costs; and also to pay a fine, or stand committed, or both; which may be hereafter so increased as to insure obedience. It therefore occurred to me, to suggest to the solicitors, the propriety of now hearing the motion to dissolve the injunction, in order that I might, upon the attachment, adopt the most suitable mode of enforcing obedience to the injunction, should I come to the conclusion that it is to be continued. The motion for a dissolution, was accordingly taken up and argued; and I shall now proceed to consider and decide upon it.

On adverting to the proceedings which have been in this case, antecedent to the 13th instant, it will be seen, that the defendant admits he closed the road subsequently to the service of the injunction upon him; and that he also admits he has not hitherto obtained from this court a dissolution of that injunction. These positions are unquestioned and unquestionable. From these premises, I conceive it to be the duty of this court, to assume and act [**51]  upon the position, that this road is now open, and has not been as yet closed, so far as regards this defendant. For if the defendant were admitted, in any way, to avail himself of that shutting of it up, which has been in fact done by himself, then he would be thus suffered to take advantage of his own wrong, which can never be allowed. And from a review of this case, I also consider it proper, as regards the defendant, to assume and act upon the position, that he cannot claim a dissolution of this injunction, unless, at the time of asking it, he shows, that the closing of the road, so far as it passes over his land, has been legally and finally authorized by some competent authority; and that the question, whether it should be closed or not, is not, at the time of hearing the motion for a dissolution, depending before any legal and competent tribunal.

The plaintiffs, by their petition filed the 13th instant, set forth and show several causes why the injunction should not now be dissolved as prayed; and, among others, they show, that proceedings have been instituted, and are now depending before the Commissioners of Baltimore county, a legal and competent authority, for having [**52]  this same highway, called the Garrison Forest Road, opened, and kept open, as it has heretofore been. As I have observed upon a former occasion, in regard to the Levy Court, whether the proceedings which have been thus instituted before the commissioners, are as correct and regular as they ought to be, is not for this court to determine. It is enough, that it satisfactorily appears, now, upon the hearing of this motion, that the defendant has not yet obtained a final and conclusive legal authority to close this road; and, that he has, as yet, no right to shut it up; because the right to do so, is, at this time, depending before, and to be determined by a legal and competent tribunal. And, therefore, until that proceeding has been finally terminated; or rather, until the defendant can show to this court, some good and sufficient legal authority for closing it, this injunction, by which it has been in point of law, up to this time, kept open, so far as it passes over his land, must be continued.

Ordered, that the injunction heretofore granted in this case, be, and the same is hereby continued until final hearing in, or further order of, this court.

Ordered also, that the defendant [**53]  do forthwith, and with the least possible delay, entirely remove and take away all fences, &c. and all manner of obstructions, which, having been heretofore by him, his agents, or servants, placed or put in or upon the road in the proceedings mentioned, contrary to the inhibition of the said injunction, he has suffered to remain and continue in and upon the said road in disobedience of the said injunction, after he might have removed the same as directed by the order of this court of the 23d of April last.

Ordered also, that the defendant for his contempt in not obeying the injunction of this court, by continuing the said obstructions in the said road as aforesaid, after the time when he might have removed the same as directed by the order of this court of the 23d of April last, pay a fine of fifty dollars, and all the costs of the last mentioned attachment, and that he stand committed until the said fine and costs are paid.

From which last mentioned order, and also from the order of the County Court directing the injunction to issue in this cause, (12th of May, 1826,) and from the order of the Chancellor of the 4th of January, 1828, directing an attachment to be issued against [**54]  the defendant, and also from the order of the court of the 9th of April, 1828, directing another attachment to issue against the defendant, he also appealed to this court. And, upon the defendants presenting to the Chancellor the bond which he had entered into with sureties for prosecuting the said appeal, the Chancellor on the 21st of May, 1828, passed the following order--

Ordered, that the foregoing bond this day filed, be, and the same is hereby approved. And, in reply to the motion submitted, the Chancellor declares it to be his opinion, that the said bond having been filed and approved before the actual payment of the fine and costs, as commanded by the order passed yesterday, which has been appealed from, and before the defendant had been actually committed to the custody of the messenger, to be by him closely confined in gaol, operates as a supersedeas of all further proceedings for that or any other purpose, in relation to the matters appealed from.

The said appeals being allowed, a transcript of the record was transmitted to this court.  

DISPOSITION:
MOTION OVERRULED.  

HEADNOTES:

AFTER an injunction had been granted, prohibiting the defendant from obstructing a public road, the Commissioners of Baltimore County authorized the same road to be shut up. The defendant, who was the owner of the land over which the road passed, without moving, or waiting for a dissolution of the injunction, shut it up. The Chancellor excused this violation of the injunction, upon the ground that the defendant had misapprehended his rights; but ordered him to place the road in its former condition; this not being done, the defendant was brought before the Chancellor by attachment. The injunction was then ordered to be continued until final hearing, or further order; and the defendant to remove the obstructions, and for his contempt in not removing them since the previous order, was fined. From these proceedings the defendant appealed. Upon a motion to dismiss the appeal, it was held, that the order of the commissioners directing, and authorizing, the old road to be shut up, placed the premises over which it formerly run, under the control of the defendant, and gave him the same right of user of the land of that road, that he had of the rest of his estate; and that the subsequent orders of the Court of Chancery, so affected his rights and interests therein, as to form a fit subject of appeal.

Where the Chancellor entertains a doubt as to the propriety of granting an injunction at all, or where, when granted, it operates in restraint of public commissioners for the opening a road, street, or the like; or it altogether stops, retards, or embarrasses the operation of a large manufacturing establishment, or restrains a public ferry, in these and some other cases of a very peculiar nature, it has been the practice in the first instance, or on application, to appoint a very early day for the hearing of the motion of a dissolution of the injunction, and that too, either with or without answer. PER BLAND, CHAN'R.

But where upon a defendant's own showing, the injunction operates in restraint of a right, which he has but recently acquired, or has not long decidedly and exclusively enjoyed, and there is nothing peculiar in the case, so as to require a departure from the general rule, it must, as in other cases where individuals only are restrained, take the course of the court.

Whether an inferior tribunal with jurisdiction over a given subject, has proceeded to exercise it upon such subject correctly, or erroneously, or has in any respect neglected, or disregarded, its prescribed modes and forms, is not for the Chancellor to determine, where he has no revising or superintending authority over it. IB.

Chancery will restrain a party from doing an act injurious to an individual, or which may be prejudicial as a public nuisance, pending any judicial proceedings before those tribunals, by which the authority to do the act, or its lawfulness is to be determined. IB.  

COUNSEL:
Gwynn, for the appellees, in support of the motion, referred to Snowden vs. Dorsey, 6. Harr. & Johns.  [**55]  115, and Thompson vs. McKim, Ibid. 302. He insisted that the appeal from the order of the 12th of May, 1826, was too late, and cited Strike vs. McDonald, 2 Harr. & Gill, 191. He also insisted that the order of the 20th of May, 1828, refusing to dissolve the injunction, was a mere interlocutory order, whereby no rights were finally settled between the parties, and from which no appeal would lie.

Magruder, against the motion, referred to 1 Madd. Ch. 128. Eden on Inj. 162, 163, 167. Co. Litt. 56. a, and the act of Ass. of 1794, ch. 52 sec. 14. He urged that there could be no breach of the injunction, until the decision of Baltimore County Court, under the certiorari. If the appellees had applied for and obtained a perpetual injunction, then the appellant might apply to the Levy Court, and obtain another order to close the road. Denton vs. Jackson, 2 Johns. Ch. Rep. 321. On an injunction to stay waste, pending an action of ejectment or trespass, it will be dissolved, on motion, unless it is shown that the complainant had succeeded at law. Here, on the decision made by Baltimore County Court, the injunction was at an end--it had performed its office. The proceedings of the Levy Court [**56]  being annulled, the appellant had no right to shut up the road; but he applied again to that court; and another order for shutting the road up was granted to him;--and he then did shut up the road. After which, it appears that the appellees applied to the Commissioners of the county, (they being substituted in the place of the Levy Court,) to open a new road where the old road had run. He contended that the orders of the Chancellor, directing the appellant to remove obstructions, &c. from the road in question, affected his rights; and that his rights were as much affected thereby, as in Thompson vs. McKim. If he were to remove his fences, &c. from the road, and it should be finally decided that they ought not to have been removed, how could he then be compensated for the injury he had sustained.

Taney, (Attorney General,) also, against the motion in his argument, referred to Attorney General vs. Utica Insurance Company, 2 Johns. Ch. Rep. 378. Eden on Inj. 157, 162, 163.

Gwynn, in reply, cited Eden on Inj. 55, 56, 162, 163. He said that the court could not compel the party to resort to a new injunction, where the reasons for a former injunction had ceased to exist, and new [**57]  reasons had arisen which would justify an injunction.  

JUDGES:
Argued before BUCHANAN, Ch. J. and EARLE, MARTIN and ARCHER, J. EARLE, J. dissented.  

OPINIONBY:
BUCHANAN 

OPINION:

 [*215]  BUCHANAN, Ch. J. delivered the opinion of the court. The order of the Commissioners of Baltimore County, on the 13th of December, 1827, confirming the report of the commissioners appointed by the Levy Court of that county, and directing and authorizing the old road to be shut up, placed the premises over which it formerly run, under the control of the appellant to whom the land belonged, and gave him the same right of user of the land of that road, that he had of the rest of his estate. And we think that the subsequent order of the Court of Chancery, does so materially affect the right and interests of the appellant as to bring the case within the principle of Thompson 

 [*216]  vs. McKim, heretofore decided by this court, and form a fit subject of appeal.
The motion, therefore, to dismiss these appeals, is overruled.
MOTION OVERRULED.
EARLE, J. dissented.  

16 of 44 DOCUMENTS 

HAYS vs. RICHARDSON.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

1 G. & J. 366; 1829 Md. LEXIS 27 

December, 1829, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Harford County Court. This was an action on the case for obstructing a way, whereto the plaintiff below (now appellee) claimed right by virtue of an instrument of writing under the hand and seal of one Joshua S. Bond. The declaration stated that on the 7th of October, 1820, at, &c. a certain Joshua S. Bond, being seized in his demesne as of fee of a certain close there situated, by his grant under his hand and seal, bearing date the day and year aforesaid, (which is now here shewn to the court) authorized the plaintiff to open and continue open a road through his the said Joshua S. Bond's field, to wit: The said close beginning at the end of the short lane near the house of the plaintiff, and intersecting the Baltimore road, near a chestnut tree; and the said Joshua thereby also authorized the plaintiff to keep in repair, and use a bridge, over the branch running through the said field. And the plaintiff also says that by the grant aforesaid, it was declared that the said road and bridge were intended as well for the use of the public at large, as for the use of the plaintiff, and that the said uses were to be enjoyed until the plaintiff and the said Joshua S. Bond should [**2]  agree that the said road, intended to be opened as aforesaid, should be shut up or altered. And the plaintiff avers that afterwards, &c. he opened a road through the said close of the said Joshua, beginning at the end of the said short lane near his the plaintiff's house, and terminating, at, or near a chestnut tree, thus intersecting the road leading towards Baltimore, and continued to pass and repass over the said road with his servants and horses, &c. for a long space of time to wit, at, &c. And he further avers that after the said road was opened, the citizens of this state passed and repassed over the said road. And the plaintiff further avers that after the said road had been by him opened as aforesaid, while the said grant was in full force and effect, and had not been determined nor any agreement made between the said Joshua S. Bond, and the plaintiff, by which the said road should be shut up or altered; the defendant well knowing the premises and disregarding the rights of the plaintiff, and intending to injure the plaintiff and deprive him of the use and benefit of the said way, to wit, on the 10th of August, 1823, and on divers other days and times, &c. obstructed the same [**3]  road by placing, &c. and demolished the bridge across the same, &c. by means thereof, the plaintiff could not during the time aforesaid, have or enjoy his said way, as he of right ought to have done, to wit, at, &c. And the plaintiff further says, that he during the time aforesaid, being a public Inn keeper, was much damaged and injured in his trade and calling by divers citizens, as well travellers as others, during the said time being greatly obstructed and hindered in their passage to and from his said Inn, the said road herein before mentioned, then and there leading from or near his said Inn, to the said other road leading towards the city of Baltimore, to wit, at, &c. Wherefore the defendant (the appellant) pleaded not guilty, and issue was joined.

1. At the trial, the plaintiff called Francis A. Bond as a witness, who being examined by the defendant on the voir dire, stated that in case the plaintiff should recover in this cause, he considered he should be obliged to pay the defendant the amount of the verdict, damages and costs, as one of the heirs of Buckler Bond, who had conveyed with the covenants in the deed hereinafter inserted, the land over which the way in the [**4]  declaration mentioned passes, to the defendant before the time stated of the trespass complained of, and that he was unwilling to testify in this case for the plaintiff. The defendant then prayed the court that the witness should not be compelled to testify for the plaintiff. But the court [Hanson, A. J.] directed the witness to be sworn; and he was sworn accordingly in chief. The defendant excepted.

2. The defendant further asked the witness Francis A. Bond, while on his voir dire, if in addition to the interest mentioned in the first bill of exceptions, he was or was not interested as the holder of a promissory note or acceptance, conditioned to be paid only after deducting the damages and costs in this case, that might be recovered from the defendant. But the court held that witness could not answer this question, inasmuch as the note spoken of was not produced. The defendant excepted.

3. The plaintiff then proved that the said Joshua L. Bond, mentioned in the declaration in this cause, was seized in fee of the land over which the said road passed; that the said Bond gave to the plaintiff the following instrument of writing which was duly proved. "I hereby authorize [**5]  William Richardson to open and continue open a road through my field, beginning at the end of the short lane near his house, and intersecting the present Baltimore road, at or near a chestnut tree, as also to build, keep in repair, and use a bridge over the branch in the filed on which said road will pass, said road and bridge being intended as well for the public use, as the use of Wm. Richardson, and to continue until William Richardson and myself shall agree it shall be shut up or altered. Witness my hand and seal this 7th day of October, 1820.     Joshua S. Bond, (Seal.)"

And that the plaintiff opened the said road and repaired the bridge in pursuance of the terms of the said instrument of writing, and used the same; and that the defendant on the 20th of August, 1823, obstructed the road aforesaid as stated in the declaration, and the plaintiff who was a tavern keeper by the obstruction aforesaid was with many others prevented from using the said way. The defendant then offered in evidence a deed duly acknowledged and recorded from said Joshua S. Bond and a certain Buckler Bond, conveying said land to defendant in fee; dated the 4th of June, 1823, which contained a covenant [**6]  against all prior incumbrances and liens. And upon which deed there was a certificate of the delivery of seisin, to the defendant who further proved, that on the day on which the deed aforesaid was executed, that the said Bond delivered possession of the land mentioned in said deed to him. The defendant then prayed the court to direct the Jury, that the plaintiff was not entitled to recover, which direction the court refused to give. The defendant excepted; and the verdict and judgment being against him, he appealed to this court.  

DISPOSITION:
JUDGMENT REVERSED.  

HEADNOTES:

No person who is called as a witness, not being a party to the suit, can refuse to give testimony on the ground, that he may thereby become liable to a civil action not of a penal nature, or sustain pecuniary loss, or that the verdict may be used as evidence against him in some other civil proceeding then pending, or which may thereafter be instituted.

A witness on the voir dire, may be the party objecting to his examination in chief, for the purpose of shewing his interest, be called on to state the contents of written instruments, which are not produced; and the reason assigned is, that the party objecting, could not know previously, that the witness would be called, and consequently, might not be prepared with the best evidence to establish his objection.

An instrument of the following tenor--"I hereby authorize R to open, and continue open, a road through my field, beginning at, &c. as also to build, keep in repair, and use a bridge over the branch, in the field on which the said road will pass, said road and bridge being intended as well for the public use, as the use of R; and to continue until R and myself shall agree it shall be shut up or altered;" executed under the hand and seal of the owner of the land, is a grant of an incorporeal hereditament, a right of way de novo, which will endure until both parties agree upon its discontinuance, and which must be acknowledged, and recorded according to our acts of registration.

A right of way in esse may pass by deed of bargain and sale, duly acknowledged and recorded.

A transfer of way de novo may be by grant or lease, but cannot be effected by way of bargain and sale.

A right of way may be said to lie in the county where it exists, or is exercisable.

The acts of Assembly of 1715, ch. 47, and 1766, ch. 14, being in pari materia, must be construed together as one system. The first having embraced incorporeal tenements, and hereditaments, there is no reason why they should be excluded from the second. The act of 1766, cannot be confined to conveyances only by which the land itself passes, for the design was, that all rights, incumbrances, or conveyances, touching, connected with, or in any wise concerning land, should appear upon the public records.

If contradictions or incongruities exist between the preamble, and enacting clause of a statute, the latter shall prevail.

A cotemporaneous, unvarying construction of an act of Assembly, for sixty years, ought not to be disregarded but upon the most imperious and conclusive grounds.  

COUNSEL:
Mitchell and R. Johnson, for the appellant, contended: 1. That the agreement of Bond with the plaintiff was no grant, and could not be pleaded as such.

2. That if it was a license, it was determinable at the will of Bond.

3. That if not so, the remedy was against Bond only, and not against the defendant, who was a purchaser of the soil without notice of this claim.

4. That if it were a grant, it ought to have been recorded to take effect against the defendant, as a purchaser without notice.

5. That if it is to operate as a grant, or otherwise to confer an interest, it is a public road, for the obstruction of which [**7]  no private action can lie in favor of the plaintiff.

6. That there is a variance between the contract proved, and that declared upon.

7. As to the first bill of exceptions, the witness was directly interested in the event of the suit, and the verdict would have been good evidence against him; and, therefore, as a party interested could not be compelled to testisfy.

8. As to the second bill of exceptions, the question to the witness was proper, notwithstanding the non-production of the note.

1st. Because the note was not within the power of the defendant, nor in the possession of the plaintiff. 2d. because the question was on the voir dire to the interest of the witness alone.

1. The agreement was no grant to the plaintiff as he has pleaded it. He has declared on it, as a right of way to himself; whereas if it is a right of way, it is not to the plaintiff alone, but to the public as well as to the plaintiff. The way when opened, was a public way. 3 Bac. Ab. tit. Grants, (G) 387.

2. But it was not a grant at all; and if so it was determinable at the will of Bond. 4 Bac. Ab. tit. Leases for years, 178. Bishop of Bath's Case, 3 Coke, 35. There is no difference [**8]  between grants and leases; and where a lease depends upon the will of both parties, it is at the will of either party. 2 Blk. Com. 146. 4 Com. Dig. tit. Estate, (H) 60, 63. Here Bond put an end to the right of way by his grant to the defendant. The plaintiff was to build and keep in repair a bridge; suppose he neglected to keep the bridge in repair, could Bond have compelled him to do so?

3 and 4. If it was a grant of a right of way, has the plaintiff any remedy against the defendant, without notice? There is no evidence to show, that the defendant had any notice of the grant, if it be one. It was not acknowledged or recorded, but was a voluntary transfer or grant without consideration. Whitbeck vs. Cook, 15 Johns. Rep. 487. Kellogg vs. Ingersoll, 2 Mass. Rep. 97.

5. There is no proof which can entitle the plaintiff to recover. The road was to be opened for the use of the public. It was a right of way for the public. There must be a particular right or a particular damage to the plaintiff to enable him to sustain the action. Butler vs. Kent, 19 Johns. Rep. 226. Co. Litt. 56. (a.) Harrison vs. Parker, 6 East. 152. Here no particular damage has been proved to have been sustained [**9]  by the plaintiff.

6. There is a fatal variance between the contract proved and that declared upon. The license states, that the termination of the right of way was to be at the "intersecting the present Baltimore road at or near a Chesnut tree." The declaration states it to be "intersecting the Baltimore road, near a Chesnut tree." When a written instrument is pleaded with a profert, it must be recited verbatim. 3 Stark. Evid. 1587, 1588. 1 Chitty's Plead. 364. Brook vs. Willet, 2 H. Blk. 234. Rogers vs. Allen, 1 Campb. 315. (note a.) Coryton vs. Lithebye, 2 Saund. 113. (note 1.) Mellor vs. Spateman, 1 Saund. 346. (note 2.) Esp. Evid. 274, 275. Doe vs. Calvert, 2 East. 377. Alban vs. Brownsall, Yelv. 164. 1 Hawk. Ch. 76. 3 Jacob's L. D. 280.

7. On this point they referred to Taney and Kemp, 4 Harr. & Johns. 342. 2 Stark. Evid. 744, 747. 3 Stark. Evid. 1728, 1648. 1 Stark. Evid. 135. (note.) The king vs. Inhabitants of Gisburne, 15 East. 57. A distributee cannot be called as a witness to testify against the administrator of the estate in which the witness is interested, against his own consent.

8. On this point they referred to 1 Stark. Evid. 120. Botham vs. Swingler,  [**10]  Peake's N. P. Cas. 218. S. C. 1 Esp. Rep. 164. Corking vs. Jarrard, 1 Campb. 37. Butcher's Company vs. Jones, 1 Esp. Rep. 162. 2 Stark. Evid. 756. Butler vs. Carver, 2 Stark. Rep. 433. The king vs. Inhabitants of Gisburne, 15 East. 57.

Gill for the appellee, contended that the first bill of exceptions, presents the question, whether one can be made to testify against his will and interest in a civil action, not being a party thereto, and interested in fact to defeat the party relying on him. This question is settled by this court in the cases of Taney vs. Kemp and The City Bank vs. Bateman. The witness must testify.

The second bill of exceptions shews, an attempt, on the voir dire to give in evidence the contents of a written instrument, without producing it, or accounting for its absence--admitting this may be done where it would avail the party seeking such evidence; yet, in this case, the bills of exceptions referring to each other, the court must see that any benefit which the defendant could have had, from establishing an interest in the witness, on the second bill of exceptions, was within his reach on the first exception. The nature of the witness's interest, on both [**11]  bills of exceptions, being the same, as it could not avail him on the first, he should not have attempted to raise the same question again. No injustice was done the defendant, for the question which he was seeking to raise by the second exception, had been previously decided, and in a shape too, to be reviewed by the appellate court. The second exception was wholly unnecessary; and, whatever may be the opinion of the court in relation thereto, it ought not to affect the cause.

The third bill of exceptions, covers the whole controversy, and the appellee contends: 1. That the deed from Bond to Richardson is a grant, or a binding and effectual contract, operating necessarily as a grant, to endure until the parties determine the rights secured by it, either by shutting up or altering the road mentioned in it. 3 Bac. Ab. tit. Grant, (F) 386, 387, (I) 393. Shove vs. Pincke, 5 T. R. 124. Chatham vs. Williams, 4 East. 475, 476. Chester vs. Willan. 2 Saund. 97. (note 1) 4 Jacobs' Law Dict. tit. license, 158. 2. That if not a grant, is it a covenant, that Richardson shall use the way. Bac. Ab. tit. Covenant, 62. 3. A covenant to enjoy a right of way, operates as a grant. 3 Com. Dig. tit.  [**12]  Chimin. (D) 60. 4. It is a private way, the public using it, and the sale of the land, over which the way passes, after the grant, do not determine Richardson's right. Allen vs. Ormond, 8 East. 4. 4 Jacobs' L. D. 158. 3 Cruse, Dig. tit. Way, 115, sec. 22. 1 Bac. Ab. tit. Authority, (P) 321. 3 Stark. Evid. 1680, (note 1.) 5. The road mentioned in Bond's grant is not a public highway. In this State, public highways are only created according to legislative authority, and no indictment would lie for a nuisance on this road. It results from these positions, that Richardson had a right of way secured to him by Bond's grant, which still existed at the time of the obstruction complained of. It is admitted, that the special damage laid was not proved; but the bill of exceptions admit an obstruction to Richardson's private way, if it exist in point of 1 w, and this was sufficient proof to enable the jury to find for the plaintiff, disregarding the special damage, and of course authorised the County Court, to refuse the defendant's prayer.

6. In this case, notice of the existence of the way, is to be presumed in Hays, he being a purchaser subsequent to the opening of the road. Whitbeck [**13]  vs. Cook, 15 Johns. Rep. 483. 7. The covenant of Bond to Hays, that the former was seized and had power to convey without incumbrance, is not broken by the fact, that a right of way existed over the land to which the covenant referred. A right of way is a mere easement. It does not diminish the interest of the vendee in law. 3 Cruse, 110. Whitbeck vs. Cook, 15 Johns. Rep. 483. 8. The sale of the land does not determine the right of way; for the grantor after the execution of his deed, cannot lawfully do any act to prejudice the rights of his grantee. Jackson vs. Aldrich, 13 Johns. Rep. 106. Allan vs. Ormond, 8 East. 4.

It has been contended that the deed from Bond to Richardson, is a grant which ought to have been recorded to take effect against the defendant, a purchaser without notice. This position is relied upon to reverse the refusal of the County Court, to instruct the Jury that the plaintiff was not entitled to recover. If the position is correct, the judgment of the court below is erroneous. It is denied that the defendant is a purchaser without notice. His deed shews an unusual and remarkable circumstance, that the ancient ceremony of livery of seisin was actually performed [**14]  in this case; long before this, the road had been opened and used. The existence of the road was palpable to the defendant when he took actual possession. In addition to this, upon the authority Whitbeck and Cook before cited, he is presumed to have notice of a road existing and used before his purchase. If then, notice to the defendant can affect this cause favorably to the plaintiff, the defendant had both actual and constructive notice of the existence of the road, when he accepted his deed for the land over which it passed. It is however conceded that if our acts of Assembly require this grant of way to be recorded, then it is void in a court of law, and the plaintiff cannot recover.

The only acts upon the subject, are those of 1715, ch. 47, and 1766, ch. 14., and it is supposed that neither reach this case. That the act of 1715 does not for this plain reason, that the 8th section, which requires deeds to be recorded, relates to deeds of "bargain and sale only." It declares that no manor lands, tenements or hereditaments whatsoever, shall pass, alter or change from one to another, whereby the estate of inheritance or freehold or for above seven years shall be made or take [**15]  effect in any person or persons, or any use thereof to be made by reason of any bargain and sale only, except the deed or conveyance by which the same shall be intended to pass, should be made by writing, indented, and sealed, &c.

The construction of this act has always confined it to deeds of bargain and sale--See preamble to act 1766, ch. 14. Other assurances were not within its operation--the grant in question is not a deed of that character--there is no consideration moving from Richardson the grantee to Bond the grantor. It wants that leading distinctive characteristic of a deed of bargain and sale.

The next inquiry is whether the act of 1766 affects the plaintiff. It enacts that no "estate of inheritance or freehold, or any declaration or limitation of use or any estate for above seven years shall pass or take effect, except the deed or conveyance, by which the same shall be intended to pass, shall be acknowledged in the county where the lands, tenements or hereditaments do lie and also be enrolled," &c. This act applies to all forms of assurances, and the only inquiry is, whether the subject matter of this conveyance is referred to in the act. It is clearly not an [**16]  estate of inheritance, nor a freehold--nor a declaration or limitation of a use. These are legal technical terms, which do not apply to this grant. The only enquiry now is, whether any estate, and if any, whether one for above seven years, is created by this grant? The term estate is significant of interest--in wills it is said to include the whole interest--in this act of Assembly associated as it is, with estates of inheritance, freehold, uses, terms for years, it refers to estates, in which as in the other cases, the grantee has an exclusive interest. Now so far from the grantee having an exclusive interest, nothing is more familiar, than an interest in one, and a mere right of way in another, an easement without any possessory right or remedy. In this case the thing granted to Richardson, is a right of way in gross. He could not alienate nor sell. It was in effect a mere privilege valuable because of its consequences, but unquestionably having no direct tendency to increase his estate. This most significant term estate, is applied to inheritances, freeholds and terms for years--and is as particularly indicative of a valuable interest in one case as in another--the terms "estates [**17]  for years" have always been applied to leases--and carry with them inseparably the idea of a valuable vendible interest in the grantee. In the enacting clause of the act of 1766, the language differs from the same clause in the act of 1715. The latter declares that "no manor lands, tenements or hereditaments shall pass"--which the former declares that "no estate of inheritance, freehold or use or for above seven years shall pass"--why this distinction in the language, entirely of a technical cast, if the legislature did not take and adopt the known difference between a privilege, and an interest? The preamble of the act of 1766, declares also that "a general registry of all deeds and conveyances of land would secure creditors, &c." This confirms our views, and sustains the opinion of the court below.  

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

OPINIONBY:
DORSEY 

OPINION:

 [*376]  DORSEY, J. delivered the opinion of the court at this term.
The only question arising on the first bill of exceptions is, were the court below, right, in compelling a witness to give testimony, which might subject him to a civil action or pecuniary loss, when offered by the party [**18]  against whom, his interest would prompt him to testify? On this subject, we have no doubt, since the decisions of this court, in the cases of Taney vs. Kemp, and the City Bank of Baltimore vs. Bateman. In Maryland, the rule of law is settled, that no person who is called as a witness, (not being a party to the suit) can refuse to give testimony on the ground, that he may thereby become liable to a civil action, not of a penal nature, or sustain pecuniary loss, or that the verdict may be used as evidence against him, in some other civil proceeding then pending, or which may thereafter be instituted. Of the opinion of the County Court on this point in the cause, we entirely approve, but we cannot concur with them, in the decision they have given in the second bill of exceptions. It is wisely settled agreeably to the suggestions of public justice and expedience, that a witness on the voir dire may by the party objecting to his examination in chief, for the purpose of shewing his interest, be called on to state the contents of written instruments, which are not produced, and the reason assigned is, that the party objecting could not know previously, that the witness would be [**19]  called, and consequently might not be prepared with the best evidence to establish his objection. For authorities on this subject, vide 1 Stark. Ev. 120. 2 Stark. Ev. 756, and the cases there referred to. In the third bill of exceptions is involved a question of much greater difficulty and doubt. If the instrument of writing given by Bond to the appellee, be considered a grant of an easement or right of way, (as according to law and the apparent intent of the parties, it may be, if viewed without reference to our acts of registration) then it becomes necessary to examine what is the character of the interest transferred, and how far it is a subject operated on, by the act of Assembly of 1715, ch. 47, entitled an act for quieting possessions, enrolling conveyances, and securing the estates of purchasers." It has been urged that the right transferred, 

 [*377]  is nothing more than a tenancy at will. But such a construction is not warranted by the terms of the contract. It is not a demise, or conveyance to continue, in the appropriate phraseology of such tenures "quamdiu ambobus partibus placuerit," and which, by the unambiguous terms of its creation, must expire [**20]  as soon as its continuance ceases to be the will of both parties; but it is a grant whose duration is not to terminate until the will of both parties unites for its discontinuance. In the language of the agreement, it is to continue until Richardson and Bond shall agree, it shall be shut up or altered. Bond's determination alone, therefore, as evidenced by his conveyance to the appellant, is not a happening of the contingency on which the estate was made to depend. It is unnecessary to determine whether this easement was to expire with the life of Richardson, or to remain after his death for the use of the public; in either event, enrollment is necessary, if the subject matter of conveyance be such as is contemplated by either of the aforementioned acts of Assembly. The title of the first act of Assembly distinctly sets out its object, viz: the "quieting possessions, enrolling conveyances, and securing the estates of purchasers;" and for the accomplishment of that most desirable end, the 8th section provides that "no manors, lands tenements or hereditaments whatever, within this province, shall pass, alter or change, from one to another, whereby the state of inheritance [**21]  or freehold, or any estate for above seven years shall be made or take effect in any person or persons, or any use thereof to be made, by reason of any bargain and sale only, except the deed or conveyance by which the same shall be intended to pass, alter or change, be made by writing, indented and sealed, and the same be acknowledged in the provincial court, or before one justice thereof, or in the County Court, or before two of the justices of the same, where such manors, lands, tenements, or hereditaments lie, and enrolled within six months after the date of such writing indented as aforesaid." The first enquiry to be disposed of is, whether the estate or right designed to be transferred by the grant, be an hereditament, (as that is the most comprehensive term, including both lands and tenements.) 

 [*378]  In 2 Bla. Com. p. 20, an incorporeal hereditament is defined to be "a right issuing out of a thing corporate (whether real or personal) or concerning, or annexed to, or exercisable within the same," which incorporeal hereditaments, the learned commentator states in the succeeding page, "are principally of ten sorts, advowsons, tithes, commons, ways, offices, dignities,  [**22]  franchises, corrodies or pensions, annuities and rents," and in page 35 of the same book, it is said "a fourth species of incorporeal hereditaments is that of ways, or the right of going over another man's ground. This may be grounded on a special permission, as when the owner of the land, grants to another the liberty of passing over his grounds, to go to church, to market, or the like; in which case the gift or grant is particular, and confined to the grantee alone, it dies with the person." These references will suffice to show, that the way in question, is an hereditament. Is it then such an hereditament as the act of 1715 can operate on? is the next question to be considered. That act of Assembly, as appears by the preamble to the act of 1766, is only applicable to such conveyances as operate by way of bargain and sale, and it is superfluous perhaps to say, that in all our legislation upon the subject of enrollment of deeds, where "hereditaments" are spoken of, they are such as attach or relate to realty, not to personalty. If the deed from Bond to Richardson had been for the transfer of a right of way in esse, there can be no doubt, but that it would pass by deed [**23]  of bargain and sale; and that for the legal transfer of such an interest by deed of bargain and sale, all the solemnities required by the act of 1715, must have been pursued. But such is not the case before us; it is an attempt to transfer, not a way already in esse, but a way de novo, which may be done by grant or lease; but cannot be effected by way of bargain and sale. As authorities to that effect, see Beaudley vs. Brook, Cro. Jas. 189. 1 Ba. Abr. 468, tit. Bargain and Sale, letter B, and Shep. Touch. 226, and the cases there cited. It is assuredly no disrespect to the Legislature of 1715 to suppose, that at the time of their passage of the law referred to, they may not have recollected this technical, subtle distinction, between the mode of transferring 

 [*379]  rents and ways in esse, and de novo, and they may therefore have acted under the impression, that their act, chapter 47, affected the one in the same manner that it did the other. But, whether they did, or did not labor under this misconception of the law, according to our view of the rational, liberal construction, that ought to be given to acts of the Legislature, upon such subjects as [**24]  the present is wholly immaterial.
Experience having shown, according to the preamble to the act of Assembly of November session, 1766, chapter 14, "that the good end and purposes of the said act (meaning the act of 1715) are now in a great measure eluded by the frequent use of conveyances by feoffment, lease and release, limitation, and declaration of uses, and other modes of conveying; and whereas a general registry of all deeds and conveyances of land, would very much tend to the security of creditors and purchasers, the preservation of titles, and thereby, to the advancement of the value of real estates, and particularly, to prevent abuses and deceits, by mortgages, and the purchase of pretended titles;" the Legislature enacted "that after the first day of May next, (1767) no estate of inheritance or freehold, or any declaration or limitation of a use, or any estate for above seven years, shall pass or take effect, except the deed or conveyance by which the same shall be intended to pass or take effect, shall be acknowledged in the provincial court, or before one of the Justices thereof, in the county court, or before two justices of the same county, where the lands, tenements, [**25]  or hereditaments conveyed by such deed or conveyance do lie." It has been urged, that as the preamble to the act of 1766 speaks merely of a general registry of deeds or conveyances of "land," that no recording is required by it, but of deeds or conveyances, by which the land itself passes; and that this construction is strongly supported by the words of the enacting clause, which requires the deed to be recorded in the county where the lands, tenements, or hereditaments do lie; and the clerks to keep books in which the deeds are to be registered, and alphabetted in the name of the parties thereto, with the name of the land and quantity of acres. But these suggestions appear much more technical and critical than 

 [*380]  substantial. Both acts of Assembly being in pari materia, must be construed together as one system. The first law having embraced incorporeal tenements and hereditaments, ingenuity itself cannot insinuate a reason why they should not be included in the second. To confine that act of 1766 to conveyances only, by which the land itself passes, is utterly subversive of that complete system of enrollment, manifestly designed to be established; is inconsistent with [**26]  that part of its preamble, which sets out the moving inducement to legislate on the subject to be, to remedy the evil, that the act of 1715 extends only to conveyances of lands, tenements and hereditaments, by way of bargain and sale only, and that other modes of conveyance (meaning by necessary implication of lands, tenements and hereditaments,) had been frequently used to the elusion of the good ends and purposes of that law; and is also inconsistent with that part of the preamble, which declares as the objects of the Legislature in adopting a general registry, to be "the security of creditors and purchasers, the preservation of titles, and thereby the advancement of the value of real estates." If contradictions, or incongruities exist between the preamble and enacting clause of a statute, the latter shall prevail. There is, however, no such contradiction or incongruity, in the act in question; construe the word "of" before the word "land," to mean concerning or relating to (meanings of which it is susceptible, and not infrequently bears) and perfect harmony is at once restored. By no rule of interpretation can the force of the words "tenements or hereditaments" be evaded,  [**27]  or their introduction into the enacting clause be accounted for, consistently with this confined exposition attempted to be imposed on the act of 1766. As to the stress which has been laid upon the words "do lie," to prove that they can relate to lands only (as incorporeal hereditaments, it is said cannot be alleged to lie any where) it appears to be a construction too subtle, not to say hypocritical to have entered into the consideration of the Legislature in passing the law. Nor are we aware that it would be an unwarrantable invasion of the rules of grammar, of the import of terms, or the licensed figures of speech, to say, that a right of way lies in a 

 [*381]  county where it exists and is exercisable. As to the alphabet to be kept by the clerk, with the entries to be made of the name of the land, and number of acres, those requisites are applicable to the transaction, as important, and necessary to the public in recording a deed transferring an incorporeal hereditament concerning land, as if it had been a conveyance of the land itself. If this cramped interpretation of the act of 1766 were to prevail, by no possible deed of conveyance in pais could the husband and wife [**28]  uniting, grant a rent charge or right of way, on the lands of the feme, so as to bind her or her heirs after the death of her husband, and the public, and the profession, would learn with astonishment at this day, that notwithstanding our system of general registry--a grant of a rent charge de novo, equal to the whole value of the land on which it attaches, and rights of way, estovers, &c. to any supposable extent, may be legally created, without any entry thereof appearing on the public records; but if a rent charge or right of way in esse be conveyed by bargain and sale (the usual mode of conveyance) then all the solemnities of acknowledgment, registration, &c. are required. Cui bono? It adds nothing to the security of creditors or purchasers of land, or the preservation of their titles, because such enrollment furnishes them no means of ascertaining the existence of the conveyances. The alphabets discloses not the name of any person, as a party to such conveyance, who ever owned the land, nor in your application to the Clerk of the Land Records, can you inform him in whose name the search is to be made. It is a matter of minor importance to creditors or purchasers, [**29]  to whom a rent charge is payable, (they are rarely for any length of time left uninformed upon that subject) but it is a matter of vital importance to them to know, whether there be a rent charge or not. In the registry of deeds, therefore, it is an object of ten times more importance "to the security of creditors and purchasers, the preservation of titles, and the advancement of the value of real estates" that a record should be made of de novo rent charges, and incumbrances on land, than of those in esse. The former are always sought for, and might be easily found by creditors and 

 [*382]  purchasers, whilst the latter are rarely if ever sought for, and could not be found, but by reference to every deed recorded in the Land Records, since the date of the patent of the tract of land, into the title of which the examination may be made.
We are aware that it has been ruled in England, that a license to use a beneficial privilege upon the land of another is no estate or interest in the land, and notwithstanding the statute of frauds may be granted without writing. In the case of Wood vs. Lake, Say. 3, it was decided that a parol agreement for liberty to stack coals [**30]  upon the land for seven years, and to have the sole use of that part of the close upon which the liberty to stack coals was given, is neither an estate or interest in or out of land. According to this decision, if A by parol for valuable consideration agree that B may stack coals upon his lands for ninety-nine years, renewable for ever; and that B and his assigns during that period, have the sole use of the lands, such agreement is unaffected by the statute of frauds, and though operative to the full extent of its terms, transfers no estate or interest in the lands. Yet in the leading case of Crosby vs. Wadworth, 6 East. 602, a parol sale of a standing crop of mowing grass then growing, was held to be within the statute as being an interest in the land. In Wood vs. Lake the judges rely on the case of Webb vs. Paternoster, reported in Palm. 71, and Popham 151. Where a parol license to stack hay upon land was held a charge upon it, in whosoever hands it might come; but say the court, it is countermandable unless a time certain is fixed for its enjoyment, "as if I license one to dig clay in my land." This case let it be remembered, was before the statute [**31]  of frauds; and therefore could be no warrant for the decision in Wood vs. Lake. In fact the only question which could have arisen in Webb vs. Paternoster, as to the necessity of writing to the transfer of such an interest, as that attempted to be created, must have been on the old principle of the common law; that an incorporeal right could only pass by deed. But if the opinions of the court in that case are to govern cases since the statute of frauds, are we prepared to go the length to which those opinions must carry us? To determine that a parol license to dig clay in land, 

 [*383]  is the same as the privilege to stack hay on it; but gives no interest in the land, though a charge upon it into whosoever hands it may come. Or to illustrate the principle still further, that an oral license to dig coal or iron ore in mines for five hundred years, and agreeably to the case of Wood vs. Lake, to have also the sole use of the land, in which the mines are situated during that period, passes the right intended to be conferred, and charges the land therewith, is unaffected by the statute of frauds, and yet creates no lease, estate, or interest in the land. It cannot [**32]  be denied that the case of Wood vs. Lake, has in England been followed by subsequent adjudications. As late as the year 1818, in Taylor vs. Water, 7 Taunt. 384, Gibbs chief justice of the Common Pleas, states that a license to enjoy a beneficial privilege on land may be granted without deed, and notwithstanding the statute frauds without writing." It is a license not an interest in the land." But these decisions are irreconcilable with the opinion of Lord Ellenborough in Fentiman vs. Smith, 4 East. 107, where the defendant having orally granted permission to the plaintiff to pass water to his mill by means of a tunnel over defendant's land; who assisted in making the tunnel, but afterwards obstructed the water, in an action brought on account thereof, it was decided that "the title to have the water flowing in the tunnel over the defendant's land could not pass by a parol license without deed." Sugden too in his law of Vendors, page 57, attacks the case of Wood vs. Lake with great effect, and pronounces it "to be in the very teeth of the statute, which extends generally, to all leases, estates, or interests." In Thompson vs. Gregory, 4 Johns. 81, [**33]  the Supreme Court of New York, (of which Kent, and Spencer were members) determined that a right to overflow the land of another, by the erection of a mill dam, was an incorporeal hereditament, which could be transferred by deed only, and not by parol permission to use it; and if it were otherwise that the assignment of such an interest, since the statute of frauds must be in writing.
With such strong reasons and high authority for questioning the soundness of the principles adjudicated in Wood vs. Lake, and subsequent cases which have followed it, we feel no disposition 

 [*384]  for the sake of analogy to give a similar interpretation to our act of Assembly of 1766, regulating the execution and enrollment of conveyances of real property, to that given in Wood vs. Lake to the statute of frauds. The language of its provisions comprehends the privilege attempted to be conferred by the instrument before us, and the policy of the law, the interests and convenience of the public, forbid that we should restrict its operation. In no other way can the leading object of the legislature, the "securing the estates of purchasers" be effected; their design was, that [**34]  all rights, incumbrances, or conveyances, touching, connected with, or in any wise concerning land, should appear upon the public records. If parol or unrecorded licenses of the character of that in controversy were tolerated, frauds and losses upon purchasers would be innumerable as may readily be imagined. A man might pay and receive a deed with all the solemnities of law, and covenants which could be devised (short of a general warranty which is rarely given) for a hundred acres or more of valuable meadow land, without the knowledge of the semblance of a right in any one by which its value could be imagined; on the next day he may learn that his purchase is a mockery; that his neighbor under an oral license from some remote proprietor of the property purchased, (of which the vendor was ignorant) is about to inundate every foot of it by the erection of a mill-dam below, his remedy can no where be had. But suppose it were even admitted, that the principles established in Wood vs. Lake, and the cases bottomed upon it, stand free from all exception, it is humbly conceived that the case now under consideration is clearly distinguishable from them. The statute of frauds on the construction [**35]  of which they arose, speaks only of estates or interests into or out of lands, whilst our act of Assembly embraces estates in lands, tenements or hereditaments, and if it be conceded, as it must be, that the right of way in question is an "hereditament," it surely would be stretching technicality to the verge of quibbling, to say that the right which one has in an "hereditament" is not his "estate" in it.

 [*385]  If we entertained even strong doubts as to what originally should have been the construction of this act of Assembly (of which we have none) they would in a moment be removed by adverting to the single fact, which the whole land records of the State will demonstrate, that from the year 1767 to the present day, grants and conveyances of de novo rent charges, rights of way, &c. have been as uniformly acknowledged and recorded, as deeds conveying the land itself. This contemporaneous unvarying construction of the act of Assembly for sixty years, ought not to be disregarded, but upon the most imperious and conclusive grounds. If there be error in it "communis error facit jus." We are sensible that we have given just cause of complaint at the unusual length [**36]  in which this subject has been treated, but the deep interest felt in it by every landholder in the State must be our apology.
We concur in the opinion given by the County Court in the first bill of exceptions, but think their opinions in the second and third are erroneous, and therefore
JUDGMENT REVERSED.  

17 of 44 DOCUMENTS 

THE STATE vs. CASSEL, alias BAKER.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

2 H. & G. 407; 1828 Md. LEXIS 36 

June, 1828, Decided 

PRIOR HISTORY:
 [**1]   ERROR to Baltimore City Court, issued on the part of the state, for the removal of a criminal prosecution. The indictment was as follows: "State of Maryland, city of Baltimore, to wit. The jurors of the state of Maryland for the body of the city of Baltimore, do on their oaths present, that John Cassel, late of the said city, yeoman, otherwise called Thomas Baker, together with Jacob W. Callip, on the first day of October, in the year one thousand eight hundred and twenty-seven, with force and arms, at the city aforesaid, one bank note for the payment twenty dollars, and of the value of twenty dollars, one other bank note for the payment of," &c. "and divers other bank notes, to wit, sixteen bank notes for the payment of divers sums of money, in the whole amounting to a large sum of money, to wit, the sum of eighty dollars, and of the value of eighty dollars, of the bank notes and property of Oran D. Crane, then and there being found, feloniously did steal, take and carry away, contrary to the form of the act of assembly in such case made and provided, and against the peace, government and dignity of the state." The prisoner pleaded not guilty, and issue was joined. The jury found [**2]  the prisoner guilty; and he moved the court in arrest of judgment, assigning the following reasons: 1. The time at which the offence is alleged to have been committed, is not sufficiently designated. 2. The bank notes ought to have been alleged to have been the notes of a bank or banks established under charter from the government of the United States, or some particular state. In the indictment this is not done. 3. The conclusion of the indictment should have been against the acts of assembly, and not against the act as is alleged in the indictment. 4. That the seventh clause of the sixth section of the act of 1809, ch. 138, is not sufficiently explicit to enable the court to pass any sentence on the prisoner, because it does not direct in what manner the value of the bank note, a chose in action, shall be ascertained; and unless it be ascertained, the amount of punishment cannot be determined. And neither the court nor jury, unless authorised by law, can annex a value to a chose in action; and, therefore, the finding the value by the jury is of no legal effect. Baltimore city court arrested judgment on the verdict, and discharged the prisoner; and a writ of error was brought on behalf [**3]  of the state.  

DISPOSITION:
JUDGMENT REVERSED, AND PROCEDENDO AWARDED.  

HEADNOTES:

In an indictment founded upon the act of 1809, ch. 138, for stealing a bank note, it is sufficient to describe the note as a bank note for the payment of, &c. and of the value of, &c. Nothing more is required than to charge the offence in the language of the act.

Where an indictment is founded upon a single statute, and not upon any other in conjunction with it, it is clear that its conclusion must be in the singular.

But where an offence is created by one act of assembly, and the punishment prescribed or affixed by another, the better opinion is that its conclusion should be against the acts of assembly.

Bank notes are considered and treated as money, and the true rule of their value as respects the graduating the offence of stealing, is the sum which upon their face they promise to pay. 

COUNSEL:
Taney, (Attorney-General,) and Gill, for the State, contended, 1. That the allegation of the day of the month, the month, and current year, is a sufficient allegation of the time laid in an indictment charging the commission of an offence.

2. The act of 1809, ch. 138, s. 6, sub s. 6, makes it felony to steal any bank note, and in charging such a felony in an indictment, it is sufficient to aver "one bank note of the value of," &c.

3. That in the conclusion of an indictment on a statutable offence, whether that offence be created or punished by one or more statute, it is sufficient to conclude against the form of the act of assembly.

4. That bank notes have now an intrinsic value, as much fixed as other articles of trade, and that, therefore, on an indictment charging a theft of them, the jury have the same right, and are under the same obligation to find the value thereof, as of any other stolen property.

5. That as the standard of punishment for the crime of theft depends on the value of the thing stolen, but which value does not enter into the constitution of the crime of larceny, the jury, without [**4]  express authority to enable the court to supply such standard, may in this, as in other cases of larceny, find the value of the subject stolen.

In their argument on the several points raised, they cited the acts of assembly of 1793, ch. 35; 1797, ch. 96; 1799, ch. 75; and 1809, ch. 138, s. 6. 2 Russell on Crimes 1147, 1148, 1149 2 East's P. C. 597, 598, 602. 1 Chitty's C. L. 238, 239, 240, 339, 340, 194, 179. Towson vs. The Havre de Grace Bank, 6 Harr. & Johns. 53. United States vs. Gooding, 12 Wheat. 472.

No Counsel appeared for the defendant in error.  

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

OPINIONBY:
STEPHEN 

OPINION:

 [*409]  STEPHEN, J. delivered the opinion of the court. This case comes up on a writ of error directed to Baltimore city court; and the question presented for the adjudication of this court, arises upon the sufficiency of the matters charged in the indictment 

 [*410]  to sustain the prosecution. The grounds of the motion in arrest of judgment have been examined and carefully considered, and the result of our most mature deliberation, has been a conviction, that they did not warrant the judgment rendered in the court [**5]  below. This is an indictment founded upon the act of 1809, ch. 138, commonly called the Penitentiary Law, which provides, that larceny of any bank note or notes shall be punished in the same manner as larceny of goods and chattels. This act speaks of a bank note or notes as the subject of larceny, without stating that they must be the notes of any particular bank or banks; and it would, therefore, seem to be reasonable, and we think the law requires nothing more in this case than to charge the offence in the language of the statute. In this respect the act of 1809, ch. 138, differs from the act of 1793, ch. 35, which mentions the character or description of the banks by which the notes must have been issued; but upon that subject the act of 1809 is totally silent. The prosecution being bottomed upon that act alone, and not upon any other in conjunction with it, it is clear, beyond controversy, that the conclusion is in strict conformity with the established principles of criminal pleading. Where an offence is created by one statute, and the punishment is prescribed or affixed by another, we think the better opinion is, that the conclusion should be contra formam statutorum [**6]  . See 2 Hale's Pleas of the Crown, 173, where he says, if one statute be relative to another, as where the former makes the offence, and the latter adds a penalty, the indictment ought to conclude contra formam statutorum. In support of which principle he refers to Dingley vs. Moor, Croke Elizabeth 750. To the same effect, see 3 Bacon's Abr. tit, Indictment, 571. Upon the subject of the sufficiency of the description of the notes, see also 2 Russell on Crimes, 1149, 1150. By an express decision of this court, in Towson vs. The Havre de Grace Bank, 6 H. & J. 47, bank notes are considered and treated as money; and it would, therefore, seem to be strange that no rule or principle is held to exist, by which a jury could ascertain their value for the purpose of graduating the offence charged in the indictment. We think the true rule is to look for that purpose to the sum which upon the face of them they promise to pay. For these 

 [*411]  reasons, without entering further into the subject, the judgment of Baltimore city court is reversed.
JUDGMENT REVERSED, AND PROCEDENDO AWARDED.  

18 of 44 DOCUMENTS 

FERGUSON vs. TUCKER.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

2 H. & G. 182; 1828 Md. LEXIS 13 

June, 1828, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court. The plaintiff in that court, (now appellee,) brought an action on the case against the appellant, (the defendant therein,) on the 17th of July 1822. The declaration contained two counts--1. That John Holland, on the 1st of July 1821, at, &c. "was, and from thenceforth hitherto hath been, the apprentice and servant of the plaintiff, and as such apprentice and servant, then and there, to wit, on, &c. at, &c. lived and resided with the plaintiff; yet the defendant, well knowing the premises, but contriving, &c. to injure the plaintiff, &c. on, &c. at, &c. wrongfully and unjustly, and without the license and consent, and against the will of the plaintiff, persuaded, procured and enticed the said Holland, so then and there being the apprentice and servant of the plaintiff, to absent himself, and depart from the service of the plaintiff, to wit, &c. On pretext of which said persuasion, &c. the said Holland, the apprentice and servant of the plaintiff, afterwards, to wit, &c. at, &c. without the license, &c. of the plaintiff, wrongfully and injuriously departed and absented himself from the service of the plaintiff, and continued absent and apart from [**2]  his said service for a long time, to wit, from thence for the space of twelve months, then next ensuing; whereby the plaintiff, during all that time, wholly lost the benefit, &c. which by reason of the service of his said apprentice he might and ought to have had and received, and otherwise should and would have received."

2. Count. That afterwards, to wit, on, &c. at, &c. "one other John Holland, then and from thence hitherto, being a certain other apprentice and servant of the plaintiff, unlawfully, and without the license, and against the will of the plaintiff, departed and went away from the service of the plaintiff, and then and there went and came to the defendant; yet the defendant, well knowing the said Holland, the said last mentioned apprentice, to be the servant and apprentice of the plaintiff as aforesaid, then and there received the said Holland, and wholly refused to deliver him to the plaintiff, his master, although so to do, to wit, on, &c. and often times since, at, &c. he was requested by the plaintiff; but the defendant unlawfully detained and entertained and kept the said Holland, so being the apprentice of the plaintiff, from his said service, from the 1st [**3]  of July 1821, for a long space of time, to wit, for the space of twelve months from thence next ensuing; whereby the plaintiff wholly lost the profit, &c. which he, by reason of the service of the said Holland, during all that time ought and might have had and received, and otherwise should and would have had and received, to wit, at, &c. to the damage of the plaintiff in the sum of," &c. The defendant pleaded not guilty, and issue was joined.

At the trial the plaintiff read in evidence an indenture of apprenticeship, dated the 10th of May 1817, and which it was admitted was executed by the several parties thereto, and approved and recorded, as thereby and thereon appeared. By this indenture two justices of the peace of Baltimore county placed and bound out, by and with the consent of his mother, John Holland, an orphan boy 13 years old, on the 4th of March then last past, to James Tucker, until he attained the age of 21 years; and that he was to be taught the trade of a cordwainer, &c. The plaintiff further gave in evidence, that one of the parties to the said indenture, John Holland, the apprentice named in the said indenture, is the same person mentioned in the plaintiff's [**4]  declaration; and that James Tucker, one of the parties thereto, is the plaintiff. He further gave in evidence that the said apprentice, John Holland, after the date of the said indenture continued, by virtue of the said indenture, to live with the plaintiff as an apprentice, until the 1st of July 1821, when he absconded from the service of the plaintiff, without cause, and without the leave or license of the plaintiff, and on the same day shipped on board a vessel in the port of Baltimore, belonging to the defendant, with the knowledge and by the request of the defendant. He further gave evidence, that the said apprentice continued in the defendant's employ for eleven months after the 1st of July 1821, and that the value of his services, during that time, was four dollars a week, net profit. He also gave in evidence, that on the 4th of July 1821, he caused an advertisement to be inserted in the newspaper in the city of Baltimore, called The American, offering a reward for the apprehension of the said apprentice; and that the defendant, during the time in which the said advertisement appeared in the said newspaper, was a subscriber to the said paper, and received it daily. The advertisement [**5]  was as follows: "Six Cents Reward. Ran away from the subscriber, on Sunday the first of July, an apprentice to the cordwaining business, named John Holland, aged about 17 years, 5 feet," &c. "Masters of vessels, and all others, are forewarned not to harbour in any manner whatsoever said boy, as the law will be put in force to the utmost. The above reward will be given if brought home, and no charges paid." Dated the 4th of July, and signed by the plaintiff. It was certified by the publishers of the newspaper to have been inserted every other day for four times, commencing on the 4th of July 1821. The plaintiff further gave in evidence, that when the defendant was called on for payment on account of the said services rendered by the said apprentice to the defendant, the latter absolutely refused to pay any thing; and being told that he was an apprentice to the plaintiff, he expressed no surprise at such a declaration, nor pretended that he had been previously ignorant of his so being an apprentice. The defendant then offered in evidence a record of proceedings in Baltimore city court, by which the said apprentice was, on the 1st of July 1822, on his petition, and the consent of the [**6]  plaintiff, discharged from his indenture to the plaintiff, he ceasing to be a cordwainer, and bound for the residue of his time to David Bangs, to be taught the trade of a cordwainer, &c. The defendant then prayed the opinion of the court, and their direction to the jury, that upon all the evidence and the pleadings in the cause, the plaintiff was not entitled to recover. Which opinion the Court, [Hanson, A. J.] refused to give. The defendant excepted; and the verdict and judgment being against him, he appealed to this court.  

DISPOSITION:
JUDGMENT REVERSED, AND PROCEDENDO AWARDED.  

HEADNOTES:

No principle of pleading is more firmly settled, than that whether the action be in debt, assumpsit, or tort, if it be necessary to allege a contract, such allegation requires corresponding proof.

In an action for harbouring an apprentice, to entitle the plaintiff to recover, he must allege the tenor, or substance, and legal effect of the indenture of apprenticeship.

Where a plaintiff, in attempting to conform to this requisition, averred, "that H, then and from thence hitherto," (that is, until the date of issuing the writ,) was his apprentice, his statement is falsified by proof, which showed that the contract of apprenticeship, had ended prior to that time; and those words being of the very substance of the contract declared on, could not be rejected as surplusage, and, therefore, he could not recover.

In such action a knowledge of the apprenticeship by the defendant, is an indispensable requisite to recovery.

Although at the time of hiring an apprentice, a defendant may have been ignorant of the apprenticeship; yet if after obtaining that information he continues to harbour him, he is liable to an action at the suit of the master, without any proof of either a demand, or refusal.

As soon as the new master acquires a knowledge of the apprenticeship, he is bound to discharge the apprentice, that he may not hold out to him an inducement not to return to his original master.

That prerogative of the court which authorises them to withdraw from the jury the consideration of the facts, is never exercised but in cases where the evidence is so indefinite and unsatisfactory, that nothing but wild irrational conjecture, and licentious speculation, could induce a jury to pronounce the verdict which is sought at their hands.

Where an apprentice absconded on the first of the month, and notice of that fact, with a caution against harbouring him, was published in a daily paper on the fourth, which paper was taken by the defendant, in whose employment the apprentice had been from the first, and afterwards continued; and the defendant afterwards being applied to by the master, for payment of his apprentice's services, was informed that he was an apprentice to the plaintiff, refused to pay for his services, and expressed no surprize at such information, nor pretended that he had been previously ignorant, of his so being an apprentice, such proof is proper to be weighed by a jury, who are to determine whether the defendant knew after the fourth, that the person in his employment was an apprentice; and the court ought not in such case, to say that the jury could not find such knowledge.

An unnecessary averment of a breach or infringement of a contract declared on, need not be proved, and may be rejected as surplusage. 

COUNSEL:
Meredith, and R. Johnson, for the Appellant. The declaration of the plaintiff below contains two counts--1. That the defendant knowingly enticed away an apprentice of the plaintiff. 2. That the defendant knowingly harboured the said apprentice. The declaration avers, in both of the counts, that Holland was the apprentice of the plaintiff at the time he left his service, and that he continued to be so until suit brought. The proof at the trial was, that Holland was duly discharged from the plaintiff's service before the institution of the suit. They contended that judgment of the court below was erroneous--1.  [**7]  Because the averment in the declaration that Holland continued till suit brought, to be the apprentice of the plaintiff, was a part of the necessary averment that he was his apprentice when enticed away or harboured by the defendant, and could not be rejected as surplusage, but must be proved. 2. Because the averment of the apprentice having been enticed away or harboured by the defendant, with a knowledge that he was the apprentice of the plaintiff, was a material averment; and that there was no sufficient evidence of it in the record. 3. Because there was no evidence to show that there was any demand or request ever made by the plaintiff of the defendant to discharge Holland, the apprentice, during the time he was in the defendant's service; and that such a demand or request in this form of action, was necessary to support it.

On the first point, they cited 1 Chitty's Plead. 231, 306. 2 Chitty's Plead. 389. Bristow v. Wright & Pugh, 2 Doug. 664. Rogers v Allen, 1 Campb. 309, 313. Weall v. King, 12 East, 452. Abitbol v. Bristow, 1 Serg. & Lowb. 454. James v Le Roy, 6 Johns. Rep. 274.

On the second point, they cited Fores v Wilson. Peake's N. P. Cas. 55. Peake's Evid 334.  [**8]  Norr. Peake, 544, 545. 3 Blk Com. 142. Winsmore v. Greenbank, Willes, 582. 3 Stark. Evid. 1310. Rowley v. Horne, 11 Serg. & Lowb. 1. 1 Phill. Evid. 306. Davis v Davis, 7 Harr. & Johns. 36.

On the third point, they cited Peake's Evid. 334. Norr. Peake, 545. 3 Blk. Com. 142. 3 Stark. Evid. 1310. 1 Chitty's Plead. 322 to 324. Winsmore v Greenbank, Willes, 582; and the act of 1793, ch. 45.

Williams, (District Attorney of U. S.) for the Appellee. On the first point made by the appellant's counsel, he insisted, 1st. That it was admitted, and so was the law, that it need not be averred in the declaration that the apprenticeship continued until suit brought; but it was sufficient that the apprenticeship existed during the harbouring by the defendant. 4 Bac. Ab. tit. Master & Servant, (O) 593. 2d. That the averment, that it continued until suit brought, was impertinent, and therefore surplusage, which never vitiates. 1 Chitty's Plead. 232, 306. 6 Com. Dig. tit. Pleader, (C. 28,) 60, (New Ed.) Hoar v Mill, 4 Maule & Selw. 470. Allaire v. Ouland, 2 Johns. Cas. 52. Lansing v. M'Killip, 3 Caine's Rep. 286. Jerome v Whitney, 7 Johns. Rep. 321. Coke Litt. 303. b. Bristow v Wright & Pugh,  [**9]  2 Doug. 665. Abitbol v Bristow, 1 Serg. & Lowb. 454. United States v Vickery, 1 Harr. & Johns. 437. 3d. That the averment does not show a want of title to recover. 1 Chitty's Plead. 233, 234, &c. Towson v The Havre-de-Grace Bank, 6 Harr. & Johns. 47.

On the appellant's second point, he contended--1. That the proof was, that the defendant harboured the apprentice on the 1st of July, and continued to do so for eleven months. The advertisement was inserted on the 4th of July, in a newspaper which was taken by the defendant. The offence was committed daily from the 4th of July. Winsmore v. Greenbank, Willes, 583, 584. Blake v Lanyon, 6 T. R. 221. An advertisement in a newspaper, taken by the party, is some evidence of knowledge. If it were not so, why is it ever resorted to? A contrary position would seem to be absurd and extravagant. Chase v Taylor, 4 Harr. & Johns. 60, 61. Leeson v Holt, 2 Serg. & Lowb. 349. Jenkins v Blizard, Ib. 451. 2d. There was further evidence of knowledge in the record. For when called on for compensation by the plaintiff, the defendant showed no surprise, and did not deny knowledge of the apprenticeship. 3d. Courts should be extremely cautious not to trench [**10]  so far on the province of the jury, as to weigh the force of testimony. 1 Stark. Evid. 398. Laidlaw v Organ, 2 Wheat. 178. Etting v Bank of United States, 11 Wheat. 59. Davis v Davis, et al. 7 Harr. & Johns. 36. Moreis & Brickley v Caldwell, 1 Harr. & Gill, 107. 4th. In an action of assumpsit, no evidence of knowledge would have been necessary. James v Le Roy, 6 Johns. Rep. 274.

On the third point of the appellant, he insisted, 1. That the averment of demand and refusal, &c. was also impertinent, and therefore surplusage, and need not be proved. 2 Chitty's Plead. 310, (269.) 4 Bac. Ab. tit. Master & Servant, (O) 593. Blake v Lanyon, 6 T. R. 221. 3 Blk. Com. 141, 142. (notes.) Winsmore v Greenbank, Willes, 582. 2d. That the advertisement was evidence to all the world that the plaintiff had not given up his right to the apprentice, and imports a demand for his return from whomsoever held him. 3d. That the demand for compensation, and refusal to make it, must be understood, after verdict, to have been within the eleven months. This satisfies the averment. 4th. The averment is one of those legal intendment which need not be proved. It is like those in counts for money had and received,  [**11]  &c. where a demand and refusal are always alleged. Here liability to pay follows the harbouring of a servant with knowledge, &c. 1 Chitty's Plead 322.  

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

OPINIONBY:
DORSEY 

OPINION:

 [*188]  DORSEY, J. delivered the opinion of the Court. There being no evidence to support the first count in the declaration, the refusal of the county court to grant the defendant's prayer, "that upon all the evidence and the pleadings in the cause, the plaintiff was not entitled to recover," can only be sustained by its appearing that all the material allegations in the second count, have been established by proof before the jury.
No principle of pleading is more firmly settled, than that whether the action be in debt, assumpsit or tort, if it be necessary to allege a contract in the declaration, such allegation requires proof corresponding therewith.

 [*189]  To entitle the plaintiff below to recover, he must allege the tenor or substance and legal effect of the indenture of apprenticeship. He has attempted to conform to this requisition by stating that "John Holland then, and from thence hitherto, [**12]  " (that is, until the 17th of July 1822,) was his apprentice. His statement is falsified by the proof, which shows that the contract of apprenticeship expired on the 1st of July 1822, in virtue of the proceedings in Baltimore city court.
There being then an essential variance between the contract alleged, and that made out in proof, the county court ought to have instructed the jury, as they were required to do, that upon all the evidence and pleadings in the cause, the plaintiff was not entitled to recover. And these words "and from thence hitherto," being of the very substance of the contract, cannot be rejected as surplusage. But suppose they were, the condition of the appellee is not changed for the better. Strike out those words, and the plaintiff below sets froth in his pleadings no cause of action, but for harbouring his apprentice on the 1st of July 1821. To sustain which the proof offered is wholly insufficient--A knowledge of the apprenticeship by Ferguson, during the harbouring, being an indispensable requisite to recovery; and the testimony adduced not even insinuating such knowledge anterior to the 4th of July 1821.
Other grounds have been assigned for the reversal [**13]  of this judgment; and as this case must be sent back on procedendo, it is right that this court should not pass them over in silence. It is insisted that the defendant's instruction ought to have been given; because the proof of knowledge of the apprenticeship in Ferguson, was too light and inconclusive to have been left to the jury to find that fact. This court think otherwise. It is true, the facts in evidence fall far short of full or conclusive proof; and we by no means intimate, that we would have drawn from them the same conclusion which has been found by the jury. But it by no means follows, even if the verdict would not be satisfactory to the minds of the court, that they would feel themselves authorised to withdraw from the jury the consideration of the facts. This prerogative of the court is never exercised, but in cases where the evidence is so indefinite and unsatisfactory that nothing but wild, irrational conjecture, 

 [*190]  or licentious speculation, could induce a jury to pronounce the verdict which is sought at their hands. The testimony here cannot be viewed in that light. The conduct of Ferguson, when payment was demanded for the services, and notice [**14]  given of the apprenticeship of Holland, were such as cannot fail to excite strong suspicions, that he knowingly harboured him. Few men, under such circumstances, if the information were new, would have failed to evince some surprise at it; and still more, few would have hesitated to rescue their conduct from censure or suspicion, by asserting their ignorance of a fact, the knowledge of which was necessarily imputed by the demand. When in corroboration of the inferences derivable from the acts of Ferguson, we advert to his daily receipt of the newspaper containing the information ascribed to him, we think it would be transcending the powers of the court, and stretching the right of instruction further than it has ever yet been carried in this state, to refuse to permit the testimony to be weighed by the jury, whatever may be our opinions as to the result to which their deliberations ought to lead them.
Another ground on which the appellant relies for the reversal of the judgment is, that inasmuch as it appears, that at the time of the employment of Holland, Ferguson knew not of the apprenticeship, no action can be maintained against him, until after a demand of the apprentice, [**15]  and a refusal to deliver him up; a position not unsupported by authority, as appears by reference to Norris's Peake's Ev. 545. 3 Stark. Ev. 1310. Winsmore v Greenbank, Willes 582. 3 Blk. Com. 141. But to this doctrine we are not disposed to subscribe our assent. Although at the time of hiring, Ferguson may have been ignorant of the apprenticeship of Holland, yet, if after obtaining that information, he continued to harbour him, he is liable to an action at the suit of the master, without any proof of either demand or refusal. Whether the knowledge be possessed before the hiring, or after the hiring, is immaterial, either as we regard the nature of the injury, or its consequences upon society. As soon as the new master acquires the knowledge, he is bound to discharge the apprentice, that he may not hold out to him an inducement not to return to his original master. And his obligation to do so is equally imperious, whether the master 

 [*191]  remain in total ignorance where his apprentice may be found, or knowing that fact, make a regular demand of him. Such is the policy of our law, as evinced by the act of 1793, ch. 45, s. 8. Such is the doctrine [**16]  in England, as established by the King's Bench, in Blake v Lanyon, 6 Term. R. 221.
The demand and refusal charged in the declaration in this case, being the unnecessary averment of the breach or infringement of the contract stated, need not be proved, and may be rejected as surplusage.
JUDGMENT REVERSED, AND PROCEDENDO AWARDED.  

19 of 44 DOCUMENTS 

ALDRIDGE AND HIGDON vs. WEEMS AND HALL.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

2 G. & J. 36; 1829 Md. LEXIS 4 

December, 1829, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from a decree of the Court of Chancery, dismissing the bill of the complainants, (now appellants.) The bill filed on the 5th of September, 1826, stated, that the complainants for a number of years were engaged as copartners in trade, in the City of Baltimore; that while so engaged in business, Thomas Tongue and Thomas T. McPherson, of Anne Arundel County, also engaged in trade under the firm of Tongue and McPherson, became indebted to them in the sum of $ 5009 95, with interest; that much of this claim had existed for several years, and Tongue, who in the dealings between the two firms, was principally known and relied on by the complainants, had repeatedly promised to secure the payment of the said claim with interest. That William Weems, (one of the defendants and appellees) being indebted to Tongue, in the sum of $ 2900, in order to secure the payment thereof, did, on the 14th of December, 1821, execute to the said Tongue a deed of mortgage, thereby conveying to him and his heirs, a tract or parcel of land called Portland Manor, lying in Anne Arundel county, and containing 300 acres, with a proviso, that if Weems, his heirs, &c. should pay to Tongue, his executors, &c. the [**2]  said sum of $ 2900, with interest thereon, in four years from the date thereof, then the said deed to be void. That the said deed was in due form of law acknowledged and recorded; that the said debt remains due, and the time limited for payment thereof expired in the month of December, 1825; and the debt intended to be secured by the said deed, being unsatisfied, a decree for the sale of the premises may now be asked. That after the execution of the said deed, and before the expiration of the time allowed to Weems for the payment of the said debt, Tongue proposed to the complainants to take, and they at his request agreed to take an assignment of the said mortgage, as a security to them, for the payment of so much of the debt due from Tongue and McPherson to the complainants, as by the said deed, Weems acknowledged that he owed to Tongue. The proposition of Tongue being acceded to by the complainants, and the form of the assignment which they were willing to take, being furnished to Tongue by the complainants, Tongue, in pursuance of the agreement aforesaid, on the back of the said deed of mortgage, wrote the following assignment: "For value received, I hereby transfer, assign and [**3]  make over to Messrs. Aldridge and Higdon of Baltimore, this mortgage, and the debt so intended to be secured thereby. Witness my hand and seal, this 11th day of January, 1825." And the said assignment, in the hand-writing of Tongue, was by him, on the day expressed therein, signed, sealed and delivered to the complainants. The same however was an insufficient security for the debt of the complainants, and the time allowed in the deed to Weems to pay his debt, not having expired, the complainants, at the request of Tongue, agreed to leave the same in his possession, and the same was kept by him, the complainants having no occasion for it, until the death of Tongue, which happened a very short time afterwards. That the assignment was intended to operate, not as an absolute transfer to the complainants of the debt due from Weems to Tongue, but only as a security in part for the payment of a larger debt, due to them from Tongue, though they are willing to accept of the same, when the precise sum due on the mortgage is ascertained, as a transfer of the debt, and a payment of so much of their claim. But the complainants are advised and expressly charge, that the effect of such assignment [**4]  is, to give to them a right to demand the said debt of Weems, to take legal steps for the recovery of it, and in a Court of Equity, they are the persons to ask, that in default of payment, a decree be passed for a sale of the mortgaged premises. They also charge, that the debt due to them from Tongue and McPherson is unpaid, and they have received no other security for the payment of it. That Weems has had notice of the said assignment; and although repeatedly requested, has refused to pay the debt due from him as aforesaid, or any part, but the same is still due. They further charge, that shortly after the execution of the assignment, Tongue died intestate; that letters of administration upon his estate have been granted to Thomas J. Hall, (the other defendant and appellee,) who having possessed himself of the effects and papers of his intestate, now holds the said mortgage and assignment; and the complainants pray, that he may be compelled to bring the same into court, in order that the right of the complainants thereto, may be shown, and a decree for the sale of the premises may be had. Prayer, that a decree may be had for the sale of the mortgaged premises for the benefit of the [**5]  complainants, unless Weems shall, within a time thereinto be limited, pay to them the debt due by him; and also for general relief.

The answer of Hall, admitted the partnership of the complainants, and that of Tongue and McPherson; also, that Weems was indebted to Tongue, and executed the mortgage mentioned, which he exhibited; also, that the endorsement on the mortgage, was in the hand-writing of Tongue; but he denied that the mortgage was ever delivered, either actually or virtually to the complainants by Tongue; and he stated, that the mortgage was found among Tongue's papers, after his death, not connected with any other paper or memorandum, to show that it had been left with him by the complainants. He admitted that Tongue might have promised to secure the debt due by Tongue and McPherson to the complainants, and that the endorsement may have been written on the mortgage by Tongue, with a view of complying with such promise; but he denied that there ever was a delivery in fact of the mortgage, by Tongue, or an acceptance thereof by the complainants. That Tongue died in January, 1826, nearly a year after the date of the endorsement on the mortgage. That soon after the death [**6]  of Tongue, and granting letters of administration to this defendant, he addressed a letter to the complainants, upon the subject of Tongue's affairs, in the expectation of receiving some important information from them. In their answer, there was no allusion to the assignment of the mortgage, and no claim or pretence set up to any part of Tongue's property, or to any of his securities, as having been appropriated to the benefit of, or assigned to the complainants. They did not then pretend to claim the mortgage upon Weems, as having been assigned to them. He believed, that the first information which they received of the endorsement on the mortgage, was communicated by him, no demand having been made by them for the surrender or delivery thereof, until after they had been informed by this defendant, of the existence of such endorsement. He knows nothing of, and therefore does not admit the statement in the bill of the form of an assignment, having been furnished by the complainants to Tongue. That the personal estate of Tongue, will not be sufficient to discharge his debts, and that he is advised not to surrender the said mortgage, unless he is compelled by law so to do, &c.

The [**7]  answer of Weems admitted the execution of the mortgage, and the justice of the claim for which it was given. He knew nothing of the other facts stated in the bill. He claimed to be credited with the sum of $ 439 26, being for tobacco delivered to Tongue, in part payment of the mortgage.

Admissions. It was admitted by the parties, that the letter from the defendant Hall to the complainants, and that from the complainants to Hall, marked exhibits A and B, were written by the parties signing them, and are the letters spoken of in the answer of Hall. Also, at the time of Tongue's death, and at the date of the endorsement on the mortgage, the partnership of Tongue and McPherson were largely indebted to the complainants, and that Tongue, the mortgagee, was one of that firm. Also, that the endorsement on the said mortgage, and the signature thereto, are in the hand-writing of Tongue.

Exhibit A. Letter from Hall to the complainants, dated T. Landing, the 10th of February, 1826. "Knowing the intimacy which existed between the late Thomas Tongue and yourselves, and the mutual friendship between you, I have taken the liberty of calling on you, for any information you may be in possession [**8]  of, relative to his business with the Messrs. Mullikins; also any information you possess, relative to the amount of debts due from him individually in Baltimore. There are rumors here, that are really alarming to those interested in his estate, respecting money due in Baltimore. Be good enough to give me your ideas generally, as regards the Mullikins, and what would be the most judicious course to pursue in recovering the money, also the amount they owe him, for it is impossible to ascertain it from his papers. This is a confidential communication, and your reply shall be so considered."

Exhibit B. Letter from the complainants to Hall, dated Baltimore, the 11th of February, 1826. "In reply to your letter of the 10th inst. we would merely remark, that we are confident that the claims in this place against T. Tongue, individually, cannot be large; but as we are not at present enabled to state, with any degree of certainty, the amount due by him, we would recommend your taking a trip to this place, when you can, on the spot, get more satisfactory information. We think it also necessary, that you should see Mr. R. Mullikin, he resides here, relative to the claim against B. D. and [**9]  R. Mullikin; and we shall take great pleasure in giving you all the information, as well as advice, relative thereto. We can now say, that we saw notes in possession of Mr. Tongue, for $ 3500, each drawn by B. D. and R. Mullikin; but which Mr. T. said was about $ 3000 short of what they owed him. You must come up."

BLAND, Chancellor, (December Term, 1826.)

The only question in this case is, whether the writing of the 11th of January, 1825, endorsed on the mortgage, is available to the plaintiffs or not? There can be no doubt, that delivery is essential to the validity of a deed; nor can it be doubted, that this court has the power, and will make every possible effort, within the range allowed by the statute of frauds, to heal the infirmities of defective contracts of every description, that can be sanctioned by the law. But the objection to the plaintiffs taking any thing by this writing is, not that it wants any of the forms and solemnities peculiar to any class of contracts, or that it is an imperfect expression of the will and agreement of the party. It is, that it has not, nor never had, as a contract, that which is of the vital essence of all obligations, the free and [**10]  final assent of the party; and, consequently, that it is not a contract at all, or in any sense.

The assent of the parties is indispensably necessary to the formation of all contracts. The various forms and ceremonies prescribed, or required by the law, are the solemn precautions, the evidences, by which the free and deliberate assent of the mind of the person contracting, are required to be externally manifested; and, when the consent of the party is clearly established, equity will go far in supplying the want of them.

The doctrine, in relation to equitable mortgages, has no direct bearing upon this question. But, most of the cases that have been referred to in the argument, are those which involve the question of an equitable mortgage or not; and, indeed all others, which arise out of informal, defective, mistaken, or part executed contracts, turn upon the establishment of this preliminary point, the final and deliberate assent of the party, who is alleged to have contracted. For, a complainant cannot ask a remedy for any omitted form or solemnity; nor can the court be called on to supply a defective expression of will; to correct an error; or to complete the execution [**11]  of an unfinished intention, where there is no satisfactory proof of any deliberate and final intention to contract, ever having existed.

That the late Thomas Tongue contemplated an assignment of the mortgage; that he meditated upon it; and that he expressed his thoughts upon the subject in writing, there can be no doubt. But, there is not the least evidence, that he had ever, at any time during his life, given his final consent to such a contract as that, upon which it appears, he had seriously reflected, and thus expressed his thoughts. He contemplated making an acknowledgment, that he had received value for the mortgage; and, he expressed the result of his meditation upon the subject of making an assignment of it, to the plaintiffs, in consideration thereof; but there is no proof that he ever did so, in fact. He never informed the plaintiffs, or any one else, that he had done so; nor were they ever in any way apprised, that he had made and assented to a contract, by which he assigned the mortgage to them. This writing remained in Tongue's own possession, under his own entire and absolute control, until his death; and, being so left, without that assent, essentially necessary [**12]  to the creation of an obligation, it cannot now be considered as a contract or agreement, of any description whatever. Nor, can it be allowed to take effect, in any way, as a testamentary writing; because there is nothing upon the face of it; nor any act, or evidence in relation to it, which shows, that it was made in contemplation of the death of the writer; or, was ever intended by him, to take effect after his decease. This writing is, therefore, in every point of view, a mere nullity. DECREED, that the bill of complaint of the complainants, be dismissed with costs.

From which decree the complainants appealed to this court.  

DISPOSITION:
DECREE REVERSED.  

HEADNOTES:

T, who was indebted to A and H, held a mortgage from W, upon which he made the following assignment, under his hand and seal. "For value received, I hereby transfer, assign and made over to Messrs. A and H, this mortgage and the debt so intended to be secured thereby, witness my hand and seal, this, &c." About twelve months after, T died. The mortgage and assignment were found uncanceled among his papers. To a bill filed by A and H, against the mortgagor and T's administrator, to enforce the assignment for the payment of their debt, which alleged, that T had promised to secure their debt by making the assignment in question, the answer of the administrator stated, "that T might have promised to secure the debt, and that the endorsement may have been written on the mortgage with a view to comply with such promise, but denied that there was a delivery of it in fact by T, or an acceptance thereof by the complainants." Upon appeal, it was HELD, that an assignment of T's interest in the mortgage, might be good and operative, without actual delivery, if connected with evidence to show he intended it to transfer his interest, in the thing assigned. That this assignment had all the forms and solemnities necessary to constitute a good contract, was in his hand-writing, signed by him, and contained a full expression of his intention to transfer his interest in the mortgage.

A Court of Equity has the power, and will make every possible effort, within the range allowed by the statute of frauds, to heal the infirmities of defective contracts of every description that can be sanctioned by the law.  

COUNSEL:
Magruder, for the appellants, contended,

1. That they were entitled to the same relief against Hall, the administrator of Tongue, that they could have had against Tongue, had he been alive. Dorsey vs. Smithson, 6 Harr. and Johns. 61.

2. That the assignment of the mortage being proved to be in the hand-writing of the mortgagee, entitled the appellants, as assignees, to the debt thereby secured, and to the security for the payment of it; of course the relief prayed ought to have been granted.

It was not necessary to prove [**13]  an actual delivery of the assignment, if a delivery was necessary to such an assignment. The law does not authorise the assignment of a chose in action. Legal evidence of the fact of an agreement to assign, is sufficient, if in writing. Suppose Tongue had filed a bill to foreclose the mortgage, Weems could have objected that he was not the proper person to file the bill, having assigned away his interest. Suppose Weems had paid the mortgaged debt to the assignees, Tongue could not recover it. If a deed of bargain and sale is not recorded, yet it is evidence of a contract; and the deed is not void, because it was not recorded. Debts may be assigned by parol, upon valuable consideration. 2 Com. Dig. 373, cites 2 Ch. Cas. 7, 37. This is not an instrument within the statute of frauds; and could be the foundation for a suit in equity. Clavering vs. Clavering, 2 Vern. 473. Boughton vs. Boughton, 1 Atk. 625. Johnson vs. Smith, 1 Ves. 314. Souverbye vs. Arden, 1 Johns. Ch. Rep. 240, 256. 1 Madd. Ch. 299. Pow. on Mort. 460. Ham. Dig. 365, pl. 21. Ex parte Bruce, 1 Rose, 374. Hankey vs. Vernon, 2 Cox's Ch. Rep. 13. Burn vs. Burn, 3 Ves. 573, 582, 583. Mestaer vs. Gillespie, 11 Ves. 624. If it [**14]  is not an assignment, it operates as a release of the mortgage, the debt being satisfied. Is it necessary to prove the delivery of a receipt, in order to make it effectual? Saunderson vs. Jackson, 2 Bos. and Pull. 239.

S. Pinkney, for the appellees. The delivery of an instrument of writing is essential. Clarke vs. Ray, 1 Harr. and Johns. 323. Delivery is necessary, because the party may retract, and so long as it remained undelivered, it was for his consideration. Suppose a promissory note was found in the possession of the drawer, would it not be considered as a satisfaction of the amount? The complainants do not appear to be the creditors of Tongue. Their claim was against Tongue and McPherson, and McPherson having survived Tongue, their remedy was against McPherson. McCulloh vs. Dashiell, 1 Harr. and Gill, 96. There are instances where evidence of presumption that there was a delivery, would be sufficient, if not rebutted. Goodrich vs. Walker, 1 Johns. Cas. 250. Clavering vs. Clavering, 2 Vern. 473. Souverbye vs. Arden, 1 Johns. Ch. Rep. 240.

Shaw, also for the appellees. 1. If Tongue had been a party, the case would be different; but it is the case of one creditor claiming [**15]  to have a preference to the exclusion of all other creditors. There was no delivery of the assignment, either actual or constructive. 2 Jacobs' L. D. 223.

2. The circumstances connected with the assignment, show it was not considered to be effectual. It remained in the possession of Tongue a whole year, and there is no proof that he had apprized the complainants he had executed the assignment. If it is a valid assignment, it must be inferred that Tongue intended to secure his own individual debt, and not that of Tongue and McPherson.

3. It was not such a deposite of title papers, as to give the complainants an equitable lien. There could be no deposite, without a depositee; here there was none. Mandeville vs. Welsh, 5 Wheat. 284. Ex parte Mountfort, 14 Ves. 606. Ex parte Coombe, 17 Ves. 369. Ex parte Bulteel, 2 Cox's Ch. Cas. 247.

Magruder, in reply. This case is to be decided on under the agreement of admissions between the parties, without resorting to the bill or answers as to the facts relative to the assignment. There is no evidence in the record about creditors, or partnership creditors. The creditors are not before the court. The cases cited on the other side,  [**16]  were cases of bankruptcy, where the creditors were seeking to recover. If there was a consideration given for the assignment, Chancery can enforce it. Black vs. Cord, 2 Harr. and Gill, 100. Lord Carteret vs. Paschal, 3 P. Wms. 199. Bunn vs. Winthop, 1 Johns. Ch. Rep. 336. Tongue held the assignment in trust for the benefit of the complainants. Moses vs. Murgatroyd, 1 Johns. Ch. Rep. 119. Cumberland vs. Codrington, 3 Johns. Ch. Rep. 261. Shepherd vs. McEvers, 4 Johns. Ch. Rep. 136. A chose in action may be assigned, and a court of equity will protect the assignee. The assignment need not be in writing; and if it is in writing it need not be under seal. If the assignor disputes it, then the assignee must prove a valuable consideration for it.  

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

OPINIONBY:
MARTIN 

OPINION:

 [*46]  MARTIN, J. delivered the opinion of the court.
The bill charges that Tongue and McPherson were indebted to Aldridge and Higdon, in a large sum of money, and that Tongue, who was the active partner, had repeatedly promised to secure the payment of the same. That Weems was indebted to Tongue, and gave him a deed of mortgage on the 14th [**17]  day of December, 1821, to secure the payment of the debt in four years after the date of the mortgage. That before the expiration of the time allowed Weems for payment, Tongue proposed, and the complainants agreed, to accept an assignment of this mortgage, as security to them in part payment of their debt, and accordingly the following assignment was made by Tongue on the mortgage: "For value received, I hereby transfer, assign, and make over to Messrs. Aldridge and Higdon, of Baltimore, this mortgage, and the debt so intended to be secured thereby: witness my hand and seal, this eleventh day of January, eighteen hundred and twenty-five." That Tongue, 

 [*47]  in a short time after this assignment, died intestate, and letters of administration were granted to Hall, &c. The answer of Hall admits the partnership of Tongue and McPherson; that the mortgage, as set out in the bill, was executed by Weems, and that the endorsement on the mortgage, purporting to be an assignment, is in the hand-writing of Tongue. That the mortgage was found among Tongue's papers at his death. He further admits that Tongue might have promised to secure  [**18]   the debt due to the complainants, and that the endorsement may have been written on said mortgage, with a view of complying with such promise, but he denies that there ever was a delivery in fact of the said mortgage by Tongue, or an acceptance thereof by the said complainants. It is also stated in the answer, that Tongue died in January, 1826. The only question put in issue by this bill and answer, is, whether it was necessary to give legal effect to this assignment, that there should be a delivery of the mortgage by Tongue to the complainants.
In examining this case, it is necessary to keep constantly in view, that this is not a mortgage or deed that requires delivery to give it legal effect, but an assignment of Tongue's interest in the mortgage, that may be good and operative without actual delivery, if there is evidence to shew the party intended it, to transfer his interest in the thing assigned. This doctrine is admitted by the Chancellor in his decree, and that a Court of Equity has the power, and will make every possible effort, within the range allowed by the statute of frauds, to heal the infirmities of defective contracts of every description,  [**19]  that can be sanctioned by the law. This assignment has all the forms and solemnities necessary to constitute a good contract. It is in the hand-writing of Tongue, and signed by him, and is a full expression of his intention to transfer his interest in the mortgage, to Aldridge and Higdon. This not only appears on the face of the assignment itself, but is admitted by the answer of Hall, the administrator of Tongue.

 [*48]  In his answer, responsive to the bill, he admits the assignment is in the hand-writing of Tongue, and was found among his papers at his death. That the said Tongue might have promised to secure the debt due to Aldridge and Higdon, and that the endorsement may have been written on the said mortgage by the said Tongue, with a view of complying with such promise.
It was the moral duty of Tongue to secure the debt due to Aldridge and Higdon. It was his express agreement to do so. He has made a solemn instrument in his own handwriting, and signed by him to produce that effect, and this instrument remains in his possession, uncanceled, until the day of his death; yet it is said you are to presume this was all idle and nugatory,  [**20]  and that too, in a Court of Equity, whose peculiar province and pleasure it is to heal defective contracts, and carry the intention of parties into effect. This doctrine would pervert the equitable powers of a Court of Chancery.
The object and intention of Tongue, when he made the assignment, is not only obvious from the writing itself, but is admitted by the administrator, and his permitting it to remain uncanceled, affords a strong presumption that the same intention continued to the day of his death. This record presents no sufficient evidence to rebut that presumption. We are therefore of opinion that the decree of the Chancellor is erroneous, and ought to be reversed.
DECREE REVERSED.  

20 of 44 DOCUMENTS 

HUDSON vs WARNER & VANCE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

2 H. & G. 415; 1828 Md. LEXIS 38 

June, 1828, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from the Court of Chancery. The bill of the complainants, W. Warner and W. Vance, (now appellees,) stated, that on the 4th of February 1820, having lent to and endorsed for J. and T. Vance divers promissory notes to considerable amounts, which were negotiated for the use and benefit of the said J. and T. Vance, in consideration thereof, and for the purpose of securing the payment of the said notes, and of other notes which might thereafter be lent and endorsed by the complainants, or either of them, to the said J. and T. Vance, whenever payment thereof should be required by the complainants respectively, the said J. and T. Vance agreed to execute a certain deed of trust or mortgage. In pursuance of which agreement, the said J. and T. Vance on the said 4th of February, 1820, bargained, &c. unto the complainant's, all and singular the books, stationary, goods, wares, merchandises, effects and property, of or belonging to the said J. and T. Vance, situated or being in the store numbered 178, then occupied by them, and standing on the north side of Baltimore street, &c. and every the debts and sums of money due and owing or payable to the said J. and T. Vance, and all books of [**2]  accounts, bonds, bills, &c. Provided that if the said J. and T. Vance, their executors, &c. should, whenever thereto required by the complainants, well and truly pay, &c. all the promissory notes that had at that time been lent to, or endorsed for them by the complainants, respectively, as all that might thereafter be so lent or endorsed, then the said instrument of writing to be void. That it was also provided by the said instrument of writing, that if default should be made by the said J. and T. Vance in payment of the said notes, then the said assignment was declared to be made in trust, that the complainants should sell and dispose of at public auction, &c. all the said property; and the proceeds, when received, to be applied to the payment of the said notes, and the balance, if any, to be paid to the said J. and T. Vance. That by the said instrument of writing the complainants were constituted attorneys to collect, recover and receive, all the debts and sums of money so transferred and assigned for the said trust, &c. They further charged that the complainants had then lent to, and endorsed notes for the said J. and T. Vance, and had since renewed the said notes, and lent and [**3]  endorsed other notes for them to a very large amount, &c. That the complainants finding their responsibility very great, and the banks requiring large reductions to be made on the said notes as they became due, called on the said J. and T. Vance, and required them, agreeably to the provisions of the said instrument of writing, to pay, take up and retire, the said notes, which they refused to do, and have never done; but the complainants had been obliged to take up the said notes, and from their own funds. The bill also charged, that in the month of March 1822, the complainants called on the said J. and T. Vance for a delivery of the effects and property mentioned and contained in the said instrument of writing, they being advised, that a delivery of them was necessary. That the said J. and T. Vance did not object thereto, but on the contrary, put the complainants into possession thereof, and permitted them to take an inventory of the effects on hand. That the complainants, confiding in the honesty and fidelity of the said J. and T. Vance, permitted them to remain in the said store, and as the agents of the complainants, to sell any articles they could, with the understanding that the [**4]  proceeds should be paid to the complainants in part liquidation of the notes they had respectively taken up and retired for the said J. and T. Vance. The bill also stated, that T. Vance, one of the said firm of J. and T. Vance, on the 18th of May 1822, executed an instrument of writing, purporting to be a bill of sale, and thereby, in the name of J. and T. Vance, conveyed to B. and H. Hudson the property before conveyed and delivered to the complainants, the said B. and H. Hudson having full knowledge of the bill of sale so executed by the said J. and T. Vance to the complainants. That since then the said B. Hudson and T. Vance have departed this life. That J. Vance, the surviving partner of J. and T. Vance, by consent of all parties interested therein, executed an instrument of writing to A. Neale, F. Lucas, and J. J. Donaldson, in trust for the creditors, of all the effects and property, debts, &c. belonging to the said firm, with the understanding that that conveyance should not prejudice the prior claimants. That the said trustees have sold the said effects and property, so conveyed to them in trust, and have the proceeds in their hands ready for distribution. Prayer, that the [**5]  said J. Vance, A. Neale, F. Lucas, J. J. Donaldson, and H. Hudson, may answer, &c. and that A. Neale, F. Lucas. and J. J. Donaldson, may give an account of the sales of the property, &c. That the nett proceeds of the said sales of the effects and property, as well as the said books of accounts, bonds, &c. due and owing to the said J. and T. Vance prior to the said instrument of writing, be brought into court, and delivered to the complainants; and for general relief, &c.

The answer of H. Hudson, survivor of B. Hudson, of the late firm of Hudson & Co. of Hartford, in the state of Connecticut, stated that J. and T. Vance, being justly indebted to the late firm of Hudson & Co. in the sum of $ 3888, for books and stationary theretofore sold and delivered to them by the said Hudson & Co, as well as for money advanced for them, &c. did, on the 18th of May 1822, sell and deliver to this defendant all the books, goods and stock in trade, of the said J. and T. Vance, then in the store No. 178, Market-street, Baltimore, and in the rooms and warehouses adjacent thereto; and also all the books, stationary, and other property, in which the said J. and T. Vance had any interest, then in the [**6]  possession of W. Warner, or any other person or persons whatsoever. That when the defendant obtained the said bill of sale of the said property, the said T. Vance was alone in possession thereof, and that the sign of J. and T. Vance was suspended over the door of the said store; and the said T. Vance made delivery thereof, as in the said bill of sale is stated, viz. "One set of Gill Blas, and one set of Sterne's Works, in the name of the whole of the said property so transferred, and as a token of the manual delivery of the whole, to the said Hudson & Co. at the date of this assignment." And also of the key of the said store, to C. Mitchell, as the agent and attorney of the defendant, on the day of the sale thereof, and the same was afterwards delivered to the said Vance, who received the same expressly as the agent and trustee for Hudson & Co. only. And the bill of sale was, on the same day, left with the clerk of Baltimore county court, to be recorded. That the bill of sale which is set up and pretended by the bill of complaint of the complainants, was collusive, fraudulent and void, the same having been more than twenty days unrecorded, although the vendors were in possession of [**7]  the goods and books thereby pretended to be sold; and further, that the said W. Warner, nor the said W. Vance, had not then, as the defendant believed, paid any part of the money for which they now pretend to have become security for, nor were they bona fide creditors of the said J. and T. Vance at that time. The defendant denies, that at the time he obtained the said security by the said bill of sale, he had any notice of any previous legal or equitable lien or incumbrance upon the said property therein mentioned, in favour of the complainants, or either of them, or of any other person or persons, except the landlord of the premises, for rent; nor had he any notice of any previous delivery or pretended delivery thereof, into the possession, or disposal of the complainants, or either of them, or of any other person on their account, excepting only the book of accounts of the firm of J. and T. Vance, and other evidences of outstanding debts due to the said firm, which are referred to in the defendant's bill of sale, as in the possession of W. Warner, which as the said T. Vance then represented to the defendant, amounted to the sum of $ 40,000 and upwards, and were more than sufficient [**8]  to pay all the debts of the said firm; but that the said books, and other evidences of debts, were then unjustly withheld from his possession and control by the said W. Warner. That the said Vance proposed to transfer to the defendant the same, together with his said stock and books, then in his said store and warehouses, as additional security for his said debt. That the defendant previous to taking his said bill of sale, inquired of the said T. Vance, if there were any outstanding incumbrances on the said property, and was informed by him, that endorsements had heretofore been made by Warner for J. and T Vance, and a contract of indemnity given to him, accompanied with a bill of sale upon some part of their property, but what part he did not state, but said that Warner had never been called upon to pay any of the notes of J. and T. Vance, and that the security which had thus been given to him, and the said pretended bill of sale, were of no avail, and had not been recorded, but were null, fraudulent and void; and that the same could not, therefore, be rightfully enforced against the said J. and T Vance, or any of their creditors. That the same was founded upon no valuable consideration,  [**9]  and could not impair the security he then proposed to give to the defendant, even as to the books of accounts and securities then in the hands and possession of Warner, and much less, incumber, in any way, the books and stationary then in the said store No. 178, Market-street, and the rooms and warehouses adjacent thereto, which he then agreed to transfer to the defendant by the bill of sale as aforesaid, and whereof the said Vance then appeared, and represented himself to be in the sole and exclusive possession, of, for and on account of the firm of J. and T. Vance, and not a trustee to or for any other person or persons. And the defendant verily believed the information so given to him by the said Vance; but for greater certainty therein, previous to his taking the said bill of sale, and upon the day it bears date, caused search to be made in the clerk's office of the county court of Baltimore, for the record of the said pretended bill of sale, in order to ascertain, if possible, what property it included, and whether the same was valid; and no such record being then found, and, as the defendant believed, not being then recorded, he concluded, as he lawfully and equitably might and [**10]  ought to have done, that no valid bill of sale affecting the said property could be outstanding, either in favour of the said Warner or of any other person or persons, so as in any way to impair the security the said Vance then proposed to give to the defendant upon the said books, &c. then in the said store, and warehouses adjacent thereto, whereof the said Vance then appeared to have, and as the defendant then verily believed, had the entire and exclusive control and disposal; and under this impression and belief, the defendant took and received the said security. The answer further stated, that the defendant had been informed that the fund sought by the complainants, as in the hands of the trustees, was raised entirely and exclusively from the sale of the said books, &c. so as aforementioned transferred to the defendant by the said bill of sale. The defendant, in his said answer averred, that at the period aforesaid, and before he obtained the said security from the said Vance, but on the same day, the said W. Warner knew that the defendant had a large claim against the said J. and T. Vance, and conversed with the defendant respecting the same; but gave no notice or intimation to [**11]  the defendant that he had any lien or claim, or bill of sale, upon the said goods, books, stationary, or stock in trade, in the said store and warehouses; but from the general tenor of his conversation with the defendant, the defendant was led to the impression that the said J. and T. Vance had given no security whatever to the said Warner, for what he pretended to claim against them. That if the pretended claim of the complainants, under the pretended bill of sale, as now set up, is established, the defendant will be defrauded out of his just and honest debt, which he trusted had been fairly and bona fide secured by the bill of sale to him. That he verily believes the complainants are not creditors of J. and T. Vance to the amount set forth in their bill of complaint; and he prays that they may prove the true amount thereof, and when and at what time, and on what account, any advances were made by them for the said J. and T Vance, &c. and that the said bill of sale to the complainants may be declared null and void; and that the said trustees may be decreed to pay to the defendant the proceeds of the said goods, &c.

The answer of J. Vance, admitted the execution of the bill of [**12]  sale to the complainants, and for the consideration therein expressed; and that a large amount of notes so lent to, and endorsed by, the complainants respectively, were not paid at maturity, by the firm of J. and T. Vance, and were either paid by the complainants, or renewed in their own names. That he was not in Baltimore when the bill of sale, said to be executed by T. Vance, in the name of the firm, to B. Hudson and H. Hudson, was made, and which, if executed, was without his concurrence or approbation. That at the request of the creditors, &c. he executed the bill of sale to A Neale, &c.

The answers of the other defendants do not seem to be necessary, as to the question decided in this case. Commissions issued, and much testimony was taken thereunder, and the cause was argued and submitted for decision.

BLAND, Chancellor, (July term 1825.) The facts and circumstances in this case are sufficiently obvious as regards the question to be decided, and, therefore, need not be digested and stated.

It is said that every case on the registry acts both in England and Ireland, which has been brought before a court of equity, has been determined on the ground that those acts [**13]  do not affect the great fundamental principles of equity; but that every purchaser, claiming under a registered deed, is left open to any equity which a prior purchaser or incumbrancer may have. There seems to be nothing in any of our acts of assembly, requiring conveyances of real or of personal property to be recorded, which should induce a court of equity of this state to consider them, as in this respect, at all different in their effect and operation from the registry acts of England and Ireland. Indeed, it may be strongly inferred from the language of the legislature itself, in the act for enlarging the powers of the high court of chancery, that all those acts of assembly, whether they relate to the recording of deeds for real or for personal property, are to be construed as those of England and Ireland have been, in relation to any prior equity.

It will, therefore, be assumed as a settled principle, that a person claiming property under a deed or conveyance, which has been duly executed and recorded, must take it subject to all other claims, of which he has had actual notice before the execution of his deed. Because after such notice, the accepting and recording of a conveyance,  [**14]  must be considered in equity as fraudulent, since the party actually had that notice which it was intended by the act of assembly he might have had by the recording of the conveyance of the prior claimant. But then to affect a record deed by notice of a deed unduly recorded, or one which has not been in any way recorded, the holder of the regularly recorded deed must have had actual notice, and it must be clearly proved. For no mere rumours, or even strong suspicion of notice, will gratify a court of chancery in breaking in upon the acts of assembly, which require deeds to be recorded. In this case, although the deed of the 4th of February 1820, was unduly recorded long after the time limited by the act of assembly, yet the chancellor is perfectly satisfied and convinced by the proofs in the cause, that Hudson & Co. had actual and express notice of its existence before the execution of the deed from J. and T. Vance to them; and, therefore, the claim of Hudson & Co. must be postponed, and give place to that of Warner and Vance. And Neale, Lucas and Donaldson, the trustees under the deed of the 20th of January 1828, will be directed to apply the proceeds of the debts and property which [**15]  were so conveyed to them, in trust, after deducting all their necessary expenses, and a commission to be allowed them of seven per centum on the whole amount they have and may disburse--First, to the payment of the rent for which the property was distrained and liable--next to the satisfaction of the claims of the plaintiffs under their deed of the 4th of February 1820,--then to the satisfaction of Henry Hudson's claim, as surviving partner of the firm of Hudson and Co. under their deed of the 18th of May 1822, and the residue, if any, according to the terms of the deed of the 20th of January 1823. And for the purpose of having this adjustment made--Decreed, that the cause be referred to the auditor, with directions to state an account accordingly, from the proceedings and proofs, and such other proofs as the parties may produce in relation to any necessary expenses incurred in the execution of the trust under the deed of the 20th of January 1823.

The auditor reported accordingly, stating the amount of the sales by the trustees to be $ 3036 05; and, after deducting the trustees' commission, their expenses, paid for house rent, and the costs of suit, amounting to $ 1250 23, he [**16]  stated that there was due to W. Vance $ 2299 16, and his proportion of the balance was $ 365 33, and to W. Warner $ 8939 67, and his proportion of the balance was $ 1420 49. This report was ratified and confirmed by the Chancellor on the 22d of October 1825, and the trustees were decreed to pay to the complainants, or bring into court to be paid to them, the sums of money respectively allowed to them in the said report of the auditor. From this decree Hudson appealed to this court, and in his petition to the chancellor for the appeal, he prayed that on giving bond and security for the costs and interest on the money to be brought into court, that the amount to be brought in might be retained in court until the final decision of the case in the court of appeals. The chancellor granted the appeal; and ordered that all proceedings in the case, pending the appeal, be stayed on the defendant's filing within the time limited by law, a bond to the complainants, with the usual condition, in the penalty of $ 6072 10, with a security or securities to be approved by the chancellor.  

DISPOSITION:
DECREE AFFIRMED.  

HEADNOTES:

A bill of sale of personal property made upon a good consideration, as, to indemnify the grantees against suretyships entered into, and to be entered into, is available between the immediate parties to the instrument, altho' not recorded.

Where a mortgage was executed of the entire stock in trade in the mortgagor's store, and three years afterwards, the stock in the same store was sold by trustees for the benefit of his creditors, in the absence of evidence, that in the intermediate time, there was an entire sale of the original stock, or that the part sold was replaced, or that any new stock was purchased and mingled with the old, it will be intended, that the sales made by the trustees, were of the remnant of the stock of goods mortgaged.

The grantee of a second mortgage of personal property recorded in time, with notice of a prior mortgage which was not duly recorded, is bound by the equitable rights of the first mortgagee, unless upon inquiry into the nature of his claim, the first mortgagee had led him to believe, that his incumbrances were removed, in which case, equity would never interpose to invalidate his legal title.

The act of 1729, ch. 8, had for its object the suppression of secret sales; by demanding that transfers should be recorded, it was intended that notice should be given, that no one might be injured, or deluded, by secret and unknown conveyances.

Its object then being to protect creditors from prior secret conveyances, any such creditor who had notice of any such incumbrance, could not be considered as falling within the class for whose benefit that act was passed.

The retention of possession of personal property, by a vendor, will not contaminate his transfer, where his deed showed, that the sale was not to have its completion immediately, but was prospective to a future event; till that future time, his possession is entirely consistent with his deed.

The failure of a mortgagee of personal property, to take possession at the time of the forfeiture, as stipulated in the mortgage, does not vitiate a deed, which in its inception was valid and effectual.  

COUNSEL:
Taney, (Attorney General,) and Mitchell, for the Appellant, contended, 1. That the complainants'  [**17]  security was void for want of record or registry, under the act of assembly, within 20 days.

2. That no possession was ever delivered to the complainants at the time of their mortgage, or at any time thereafter; but that the property remained in possession and control and disposal of J and T. Vance, until Hudson received it from them, and that as against him, a bona fide purchaser, without notice, the deed to the complainants was fraudulent and void.

3. That Hudson had no such notice as to inflict him with fraud in taking a bill of sale of the property; but on the contrary, that concealment was practised by the complainants to mislead him, and that he was misled in fact, although he used due diligence to obtain knowledge.

4. That the security to the complainants was without consideration, and ought not to have been sustained by the chancellor against Hudson; or, at all events, not to the amount allowed by the chancellor.

5. That there was a fraudulent resulting trust to J. and T. Vance in their deed to the complainants, and the deed was void, whether registered or not, on the principles of the common law.

6. That Lucas, one of the defendants, was not a competent [**18]  witness for the complainants, and not made so by any proceeding before the commissioner who took his testimony.

7. That the chancellor's order requiring security for the fund, and denying the prayer of Hudson to have the money brought into court, was illegal; and that the distribution of a fund, after an appeal had been taken, was irregular and unwarranted by law--the fund being in the hands of the trustees, who were before the court; and that this court may direct the money to be brought in by the trustees now, they having notice of the appeal. They cited, in their arguments on the several points, the Act of Ass 1729, ch. 8. Dorsey v Smithson, 6 Harr & Johns 63. Stat. 13 Eliz. ch. 5. Fitzhugh v Anderson, 2 Hen. & Munf. 308, 303. Sturtevant v Ballard, 9 Johns. Rep. 337. Esp. Evid. 238. Hamilton v Russell, 1 Cranch, 316. Weller v Wayland, 17 Johns. Rep. 102. Brinkerhoff v Marvin, 5 Johns. Ch. Rep. 327. Shirras v Caig, 7 Cranch, 34. Livingston v M'Inlay, 16 Johns. Rep. 165. Wordall v Smith, 1 Campb. 332, 333. Boyd v Dunlap, 1 Johns. Ch. Rep. 484. 3 Bac. Ab. 313. 19 Ves. 434, 437.

Winchester, for the Appellees, insisted, 1. That the bill of sale from J. and T. Vance to the complainants,  [**19]  of the 4th of February 1820, being bona fide, and for a valuable consideration, was as between the parties to it, binding and effectual, although not recorded in time.

2. That Hudson having had actual notice of the deed of the 4th of February 1820, before he obtained his bill of sale from T. Vance of the 18th of May 1822, was equally bound with J. and T. Vance.

3. That independently of the bill of sale to the complainants, they had acquired title to the property in question by an actual and bona fide delivery thereof in the month of March 1822, two months before Hudson, or his agent, had applied for or obtained a bill of sale.

4. That the bill of sale from T. Vance to Hudson was obtained by fraud--was not executed according to the act of assembly; and that Hudson, or his agent, never had either an actual or legal possession of the property.

First Point. It is not necessary to produce authority to sustain this position. The deed itself purports consideration, besides the proof in the cause. That there was a debt actually due appears, 1st. by the answer of J. Vance; 2d. by the testimony in the record. Here then is a conveyance bona fide and for a valuable consideration,  [**20]  and which no one will dispute, is binding on J. and T. Vance, if they were defendants. There is no tainted spot in this transaction on the part of the complainants. They were not only bona fide, but suffering creditors.

Second Point. The principle is that a purchaser, under a recorded bill of sale, must take it subject to all other claims of which he had actual notice before the execution of his deed; because it would be otherwise a fraud. If this bill of sale had been recorded, who would doubt but that it would take preference of Hudson; and a fortiori, if he has notice actually given to him. The whole policy and object of the recording statutes in England and our law was, to give notice. Recording was not a substitute for actual notice, but auxiliary to it. 1 Madd Ch. 327, 328. Anderson v Maltby, 2 Ves. jr. 254, 255. 2 Eden, 228. Frost v Beekman, 1 Johns. Ch. Rep. 302. What kind of notice is necessary to put a purchaser upon inquiry, &c? Sugd. 498. Smith v Low, 1 Atk. 490. Ward v Turner, 2 Ves. 437, 440. Underwood v Lord Courtown, 2 Sch. & Lef. 66. 3 Bac. Ab. 313. The proof on the question of notice is abundant, as will be seen in the record.

Third Point. The possession [**21]  by the complainants, independently of the deed, gave them a good title; and of this possession, there is the most conclusive proof Hudson had notice. The law is clear, if there was a bona fide and actual delivery, the title would pass as against all the world; and most certainly as to any one having notice. The possession of the complainants was bona fide, and not collusive, as proved by the evidence.

Fourth Point. He who takes a bill of sale, does so subject to notice of all previous claims. In the bill of sale to Hudson, T. Vance is the only grantor. It was signed by him, in the name of J. and T. Vance, but not sealed; and it was acknowledged by T. Vance only. The act was done without the knowledge and against the wish, consent, or authority of his partner. It was a fraud upon his co-partner. One partner cannot transfer the property of the partnership in this manner. He could not alone, without authority from his co-partner, make a valid bill of sale. It was not executed in conformity to the act of 1729, ch. 8. It was clearly a fraud attempted upon the complainants. There was nothing like a delivery and possession legally made and delivered, as is fully proved by the evidence.  [**22]  The property had been previously seized under a distress for rent, and was at that time in the custody of the law, so that it could not be transferred.  

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

OPINIONBY:
ARCHER 

OPINION:

 [*427]  ARCHER, J. delivered the opinion of the Court. The chancellor has in this case decreed, that the funds in the hands of the general creditors of John and Thomas Vance, shall be appropriated in the first place to the discharge of the claim of William Warner and William Vance. Hudson, surviving partner of Hudson and Co, claims priority in the distribution of these funds in virtue of his bill of sale from Thomas Vance, of the firm of John and Thomas Vance. dated the 22d of May 1822; and as his claim has been postponed, he has prayed an appeal to this court.
The appellant relies on his legal title, which he contends overreaches any lien which Warner and Vance could have on the property.
The bill of sale made in 1820 to Warner and Vance was made upon a good consideration. It was made to indemnify them against suretyships entered into, and to be entered into by [**23]  them for J and T. Vance, and it cannot be questioned, but that it was perfectly available as between the immediate parties to the instrument, although it was not recorded. It might be void against creditors who were injured by it; yet, nevertheless, binding on them. The principle was settled by this court in the case of Dorsey v Smithson, 6 H. & J. 61.
If it be binding on J. and T. Vance, the next subject of inquiry will be its effect upon the transfer made to Hudson, and whether it will overreach the claim of Hudson? And 

 [*428]  this will depend on the solution of several questions--whether the mortgage of J. and T. Vance to Warner and Vance covered the property claimed by Hudson? If it did, whether Hudson had notice of the lien of Warner & Vance? And lastly, the effects of such notice, if any such existed, upon the claim of Hudson.
The mortgage covered the stock of books and stationary in the store of J. and T. Vance at its date, and the fund, now for the disposition of the court, arose from the sale of the books and stationary in the store in February 1823, a period of three years after the [**24]  date of the mortgage. The ability of the instrument to cover the proceeds of the sales of the stock mortgaged, which might remain in the hands of J. and T. Vance, or such additional stock as, with the proceeds of the sale, or by other means, might have been purchased by J. and T. Vance, and put in their store, to replace such sales as may have been made by them between the date of the mortgage and the date of the sale by the trustees of the general creditors, need not be examined or determined in this case. There is no evidence to show that there was an entire sale of the old stock, and that it was replaced by new, between the date of the mortgage and the sale by the trustees; or that any books or stationary were purchased in the intermediate time, and mingled with the old stock. There is evidence of sales, but no testimony to show that the original stock was exhausted or partially replaced; and in the absence of such testimony, we cannot but intend, that the sales, which took place under the superintendence of the trustees, were of the remnant of the stock of goods mortgaged. It is certain that goods were received from Hudson by John and Thomas Vance, and [**25]  were credited in their books; but whether they were brought to their store, and mingled in the general mass of their capital, is not in evidence.
The next subject for consideration will be, whether Hudson had notice of the pre-existing lien of Warner and Vance. Hudson must be supposed to be conusant of the facts stated in his own bill of sale, and the transfers therein made. Looking at this, we find a conveyance of all the books and stationary, and other property in the possession of Warner, in which J and T. Vance had an interest. Hudson, in his answer, endeavours 

 [*429]  to limit the generality of these expressions, and intimates, that they had reference solely to the books of accounts and evidences of debt, of which Warner had taken possession. But if this were the object, and he had no reason to fear that Warner had taken possession of the books, stationary and other property, it would be difficult to divine a reason for the insertion of these general words in the instrument. When we examine the testimony in the cause, and look at the efforts of Warner to take and maintain possession of the store, these general words in the conveyance, [**26]  strongly incline us to believe that Hudson could not have been unaware of the claim of Warner, and of the facts which actually occurred as springing out of that claim. But independent of the bill of sale, the answer distinctly admits the notice, before the execution of his bill of sale, that Warner and Vance had received a conveyance. It is true he was, at the same time, apprized that nothing was due upon the conveyance; but from whom? from his creditor, who was then pressed to give him a security for his debt. Ought he to have confided in such an interested representation from one whom, common sagacity might have admonished, would, very naturally, be inclined to rid himself of the pressing solicitations of importunate creditors, by the most favourable representations, of the unincumbered and unshackled condition of his estate? He was not, in truth, so easily imposed upon. At least he was not willing to confide entirely in Vance's statement; for we find, that notwithstanding he had been informed by Vance that his bill of sale to Warner was never placed upon the records, he examines into this fact for himself, and when he ascertained satisfactorily that nothing [**27]  was on record legally binding the property, he resolves to take the title, and hazard the experiment, whether his title could not be made to override any unrecorded transfer to Warner and Vance. That such information, thus imparted to him, sufficiently affected him with notice, cannot be doubted, particularly when that information was accompanied with no equivocal indications, that the first conveyance was meant to reach the identical property, of which he took the transfer. If Hudson could have supported by testimony what he has set up in avoidance of this notice, his claim would have been presented 

 [*430]  in a very different view before this court. Could he have established the fact that he had made the inquiry of Warner, into the nature of his claim and lien, and had been led by Warner to believe that his incumbrances were removed, equity would never interpose to invalidate his claim. But these facts were necessary to have been established, as they constituted the only effective part of his defence, and it is scarcely necessary to say, that his answer can furnish no evidence of these facts.
There is one part of this transaction which cannot escape the remark [**28]  of the most superficial observer. And in adverting to it, we, by no means, intend to cast any censure on Mr. Hudson, as he was in the pursuit of a just claim, and of the means of securing it. The ceremonies attending the execution of this bill of sale were peculiar. To give it validity they were wholly useless. Why was adopted the symbolical delivery of the goods by the delivery of the key of the warehouse? One would have thought this was sufficient, yet to this was superadded, for greater security, the delivery of a book in the name of all the books, stationary and goods. If the transmission of the legal title was the object, these proceedings were useless, as his bill of sale effected that object. On the other hand, if the goods were to be transferred by delivery, then the bill of sale was unnecessary to be recorded, and all the stipulations upon which the delivery was to take place could have been effected by a writing, neither demanding record, nor acknowledgment. These ceremonies, and this formula, lead irresistibly to the conclusion, in connexion with the bill of sale, answer and evidence, that Hudson had such a notice as would affect his conscience, and that there [**29]  existed some pre-existing equity, which this machinery was to destroy, and which when prostrate, would permit his legal possession to rest in security.
As it appears conclusively to our minds that Hudson had notice, we are led to the examination of the effect of such notice upon his title. The act of assembly of 1729, ch. 8, had for its object the suppression of secret sales. By demanding that transfers should be recorded, it was intended, that notice should be given, that no one might be injured or deluded by secret and unknown conveyances.
Its object then, being to protect creditors from prior secret 

 [*431]  conveyances, any such creditor, who had notice of such an incumbrance, could not be considered as falling in the class of those for whose benefit the act was passed. For when he had notice, how could he be considered as injured by the conveyance? We cannot give the act the narrow construction, which seems to be contended for, that no notice was sufficient to gratify the law, but such as was derived from the registry of the deed; for such a construction would invalidate transfers, which, it is obvious, from the general tenor of the act, it was not the [**30]  purpose of its framers to disturb, or interfere with. Any other kind of notice of the transfer, which demonstrates the existence of a lien, or the transfer of a right, brought home to the party who seeks to avoid such lien or transfer, will be sufficient
But although the bill of sale to Warner and Vance was made upon a good consideration, Hudson's bill of sale cannot be overreached by the previous bill of sale, unless it appear that an incumbrance, as against him, was created by it, which was not condemned as fraudulent by the peculiar circumstances which attended it.
The consideration of the unrecorded mortgage to Warner and Vance was two-fold--to guard them against injury from former securityship, and for anticipated loans and endorsements of notes. But, it is said, the recital which explains the object and purposes of the deed, is not conformable to the facts. If this be so, it would certainly subject the instrument to a very rigorous scrutiny, and a misrepresentation in this respect would subject it to strong suspicion. But it would not follow, that every variance in the statement of the real facts of the case, would defeat and destroy the instrument, where [**31]  it appeared that the transaction was fair on the whole, and indemnity was the real objects of the parties. Nor would the court be disposed to hear with a very favourable ear, the objections of one who had received no injury from the transaction.
But in truth, there is no suggestion of falsehood, as we apprehend, in the recitals of the bill of sale. The responsibility of Warner and Vance had been undertaken for John and Thomas Vance, as was anticipated in the mortgage; and although there is no direct evidence that prior to the mortgage 

 [*432]  notes had been loaned, yet they may have been so loaned; and constituting now no part of their claim, we fairly presume from the course of business, that the earliest notes found in the record were, many of them at least, renewals of former ones loaned or endorsed by Warner and Vance.
In the retention of possession by John and Thomas Vance there will be found nothing to contaminate the transfer, for the possession was consistent with the deed; and although this would not necessarily render it valid, yet by the agreement of the parties it was not to have its completion immediately, but was prospective to a [**32]  future event; that is, the default on the part of the mortgagors to pay the amount of the promissory notes whenever their payment should be demanded by Warner and Vance. And in such a special case it has been adjudged (Bucknal v Roisten, Prec. in Ch. 287,) that possession by the vendor till that future time, is entirely consistent with the deed. And if the deed is good at its commencement, it has been determined that it shall continue so, notwithstanding possession is retained at the time of the forfeiture. Lady Lambert's case, Shep. Touch. 65.  Stone v Grubham, 2 Bulst. 25. Roberts on Fraud. Conveyances, 561, (note f.)
Their failure then, to take possession of the property at the time of the forfeiture as stipulated in the mortgage, does not vitiate a deed which in its inception was valid and effectual.
It appears then, from our view of this case, that the mortgage from J. and T. Vance to Warner and Vance was binding between the parties thereto; that it was valid at common law, notwithstanding the retention of possession, its completion looking to a prospective event; that being valid in its commencement, it was not condemned [**33]  by a failure on default to take possession of the property; that Hudson having notice of this conveyance, is bound by the prior lien which it created, and that he is not to be considered in the light of an injured creditor, having had such notice, and, therefore, not entitled within the meaning of the act of 1729, ch. 8, to set up his title against the prior deed, and by so doing to treat it as a nullity.
DECREE AFFIRMED.  

21 of 44 DOCUMENTS 

UNION BANK OF MARYLAND vs. EDWARDS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

1 G. & J. 346; 1829 Md. LEXIS 26 

December, 1829, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from the Court of Chancery. In this case a bill was filed on the 18th of December, 1822, by the appellants, against William Stansbury, for the sale of certain lots of ground in the city of Baltimore, mortgaged by him to them, on the 27th of July, 1822, for the purpose of securing the payment of all and every sum or sums of money then owing, or which might thereafter be due or owing from Stansbury to the Union Bank, upon any promissory note or notes negotiated, or to be negotiated at the said bank, which was or might be drawn or endorsed, or otherwise however; with a proviso, that if Stansbury should, when thereunto required, pay unto the said bank, all and every, the sum or sums of money then owing, or which might thereafter become due or owing from him to the said bank, either upon any promissory note or notes that had already been, or which might thereafter be negotiated at the said bank, of which he might be drawer, or endorser, or otherwise howsoever, then the said mortgage was to be void. Such proceedings were had upon the said bill, on coming in of the answer, admitting the facts stated in the bill, and consenting to a decree for the sale of the mortgaged premises, and [**2]  that out of the proceeds of sale, the sum of $ 20,000 due to the complainants, with interest thereon, should be paid; that at December term, 1822, a sale was decreed; provided that not more than $ 19,258 be paid to the complainants. The property was sold by the trustee, appointed for that purpose, to the amount of $ 12,005 33, and the sales were ratified.

On the 10th of December, 1824, and also on the 21st of February, 1826, Elizabeth Edwards (the now appellee) filed her petitions. The first petition stated, that in the year 1822, she had loaned her name for a small amount to William Stansbury, and had either drawn or endorsed notes for his use and accommodation accordingly, which notes had been and were discounted by the Union Bank. That subsequently thereto, Stansbury wishing to obtain further discounts at said bank, and in order to secure the payment of all and every sum or sums of money, then due, or which might thereafter become due, and prevent any loss whatever, on the notes so loaned or endorsed by her, or by other persons, or which might thereafter be loaned by her or others, and discounted at said bank, did on the 27th of July, 1822, execute a deed of conveyance by way [**3]  of mortgage to the said bank, whereby he conveyed to them his real estate, or the greater part thereof, which was large, and consisted of a variety or number of lots and improvements, situate in the city of Baltimore. That the said property was intended and expressed in the said deed to be conveyed for the purpose of securing the payment of all and every sum or sums of money, then due and owing, or which might thereafter become due or owing, from Stansbury to the said bank upon any promissory note or notes negotiated, or to be negotiated at the said bank, of which Stansbury might be the drawer or the endorser. That the understanding and intention of all the parties, being, that the said property should be responsible for all notes negotiated or to be negotiated, at the said bank for Stansbury, and the petitioner believing the said property to be valuable at the time, and sufficient to secure a large amount; and believing further, than in the event of a failure of Stansbury at any time to pay such notes, the said property would be sold, and the petitioner and the other drawers and endorsers made responsible only for any deficiency (if any existed,) or that upon their paying such notes,  [**4]  the same could be assigned to them, she did not hesitate from time to time, to renew the notes which she had drawn or endorsed for Stansbury before said deed was executed, and also draw and endorse other notes in his favor, for his accommodation, which were discounted or continued at the said bank. The petition then stated the filing the bill by the bank and the sale of the property, &c. Prayer, that the proceeds of the sale may be applied to payment pro rata of the said notes held by the bank, and drawn and endorsed by Stansbury, &c. The last petition after referring to the proceedings which had taken place in this case, stated, that the said mortgage from Stansbury to the complainants, was designed and intended by the parties thereto, to secure all the notes discounted or negotiated at the Union Bank, for Stansbury's use, or in the event of its falling short of the whole amount, then upon a sale becoming necessary, that the proceeds should be applied rateably to the discharge of said notes. That the complainants now seek to apply the whole proceeds to the extinguishment of a particular debt, alleged by them to be due and owing to them from Stansbury; although the petitioner conceives [**5]  the same is not embraced by the mortgage, and forms no part of the negotiated notes discounted for his use, and which alone were intended to be secured by the mortgage--Prayer that the auditor be directed to state an account excluding the present alleged claim of the complainants, and distributing and applying the proceeds to the payment of the notes negotiated by Stansbury at the said bank, and there discounted for his use and accommodation; and another account whereby the same funds shall be distributed and applied rateably to the alleged claim of the complainants, and to the notes negotiated and discounted for Stansbury; and that the complainants produce to the auditor the several original promissory notes held by them and discounted for the use of Stansbury, &c.

To this petition the complainants answered, stating among other things, that in the year 1822, and previous thereto, Stansbury was indebted to them to the amount of $ 15,000 and upwards, upon certain promissory notes discounted by them for the use and benefit of Stansbury; and that on some of these notes made in the fall of the year 1822, the said Elizabeth Edward's name appeared as drawer or endorser; that on the [**6]  27th of July, 1822, Stansbury executed the deed of mortgage, &c. That after the execution of the said mortgage, Stansbury continued to present paper whereon he was drawer or endorser, for various amounts and at various times, with intent to have the same discounted for his use and benefit, which said paper was from time to time discounted, and portions thereof were also from time to time renewed by other notes. That these negotiations were continued until 1824, and in June and July of that year, Stansbury then stood indebted upon notes whereof he was drawer or endorser, viz. a note for $ 8700, drawn on the 17th June, 1824, by Stansbury in favor of J. P. cashier, at sixty days. A note drawn on the 12th of July, 1824, by Stansbury in favor of Elizabeth Edwards for $ 600, and endorsed by her, and Wilmer and Palmer. Three notes, the first dated the 8th of July, 1824, for $ 1800; the second dated the 14th June, for $ 1200, and the third dated the 19th of July for $ 700. All three drawn by Elizabeth Edwards in favor of Stansbury, and by him endorsed; and Stansbury, was also indebted to the said bank on two notes, the first drawn by N. M. Bosley in favor of Stansbury for $ 300, dated the [**7]  17th of June, 1824, and the other drawn by J. Medtart in favour of Stansbury for $ 200, dated the 17th of July, 1824, both of which notes were subsequently paid by their respective drawers; but the other notes before mentioned never were paid to the bank, and still remain due and unpaid. That soon after the execution of the deed of mortgage, the respondent filed their bill for the foreclosure thereof, the same having become forfeit, and a decree by consent was accordingly obtained for a sale, &c. That the property was sold to the amount of $ 12,005 33. That the said sum was answerable for the payment of certain liens there out, which were to be paid before any portion of the above mentioned notes were entitled to be liquidated; which said liens consisted of, &c. which said liens thus reduced the amount subject to the payment of the said notes to a sum less than $ 8000. That the sum thus left is not sufficient to pay the first note due by Stansbury for $ 8700. They utterly deny that there was any understanding or agreement between them and Elizabeth Edwards or Stansbury, that the mortgaged premises when sold should be applied to pay the notes whereof Mrs. Edwards was either drawer or [**8]  endorser, or that any pro rata distribution of the fund should be made in her favor, or that there was any agreement or understanding between the said parties, other than that recited in the said deed of mortgage. They aver that in granting the discounts as aforesaid to Stansbury, they were regulated by their opinion of the solvency of Mrs. Edwards, in determining whether they would grant discounts with her name; and took her name as a further and additional security for the payment of the notes by Stansbury, lest the security of the mortgaged premises should be, as it turned out to be, insufficient for their indemnification against loss; and they would not have lent their money upon the security of Mrs. Edwards's name, if they had been apprized that she could or would claim any benefit from the security of the mortgaged premises, as she now pretends to do by her petition. They are advised that Mrs. Edwards has no right in equity or in law to claim a payment of the notes whereon her name appears, until all the liabilities which were intended to be secured by the said mortgage be first satisfied. Prayer that the petition be dismissed, and the respondents be permitted to take such benefit [**9]  from the mortgage as they are entitled in equity and conscience to demand.

Affidavits were filed by Mrs. Edwards; one of them, that of William Stansbury, who made oath that Mrs. Edwards became drawer or endorser on notes discounted at the Union Bank for the accommodation of the deponent, some time in August, 1822; that her name was substituted upon said notes for R. Middleton's, who was considered as in bad credit; and that Mrs. Edwards consented to lend her name on said notes under the express assurance that the payment of them was fully secured by the mortgage deed of a large amount of property to the said bank, which he believed would have been amply sufficient to have secured the payment of all the notes at the said bank, had it not been disposed of at an immense sacrifice.

BLAND, Chancellor, (April 28, 1826.) The matter now presented to the consideration of the court, arises out of the petition of Elizabeth Edwards and the answer thereto of the bank. The counsel on both sides have been heard, and the proceedings considered.

It appears, that Stansbury, the defendant, with a view to obtain such loans of money as he might want, on the 27th of July, 1822, mortgaged [**10]  the whole of a considerable proportion of his property to the Union Bank, the plaintiff; which, it was stipulated should stand as a security for all and every sum or sums of money then owing, or which might thereafter become due and owing from Stansbury to the bank, either upon any promissory note or notes, that had then been or might thereafter be negotiated at the bank, of which he might be drawer or endorser or otherwise howsoever. At the time this deed was made, Stansbury, it is alleged, was indebted to the bank to the amount of $ 15,000 and upwards, by notes, of which he was either drawer or endorser; and some of which were endorsed by Elizabeth Edwards, the petitioner. After which, on the 18th of December, 1822, the bank filed their bill here to have the mortgage foreclosed; and on the 27th of the same month, by consent, obtained a decree for a sale; and a sale has been made accordingly. But notwithstanding this judicial proceeding, the negotiations between these parties were, from time to time, renewed and continued down to the month of July, 1824, when it appears, that Stansbury stood indebted to the bank to a considerable amount by promissory notes; one of which, dated ion [**11]  the 17th of June, 1824, for $ 8700, was given by Stansbury directly to the bank itself without any endorser; all the other notes were endorsed or drawn by other persons--the greater amount by Elizabeth Edwards, the petitioner.

The case is somewhat complex; but it appears to me, to be resolvable into this: The Union Bank is the creditor of Stansbury to a considerable amount, for the payment of the whole of which it holds a lien upon the mortgaged property, and for a part it holds the additional personal security of Edwards's endorsements of Stansbury's notes. This relationship of principal and debtor, and of a surety to a creditor who held a pledge of property as an additional security, existed, as relates to Edwards, on the execution of the mortgage deed, and has been, from time to time, revived, renewed, and continued ever since. I shall, therefore, consider these parties as now standing in this predicament and relation to each other.

The petitioner insists on having the proceeds of the mortgaged property, applied to the payment of the aggregate amount of debts due by Stansbury to the bank, as far as they will go, without distinction or discrimination. On the other hand,  [**12]  the bank contends for the right to apply those proceeds exclusively to the payment of Stansbury's note for $ 8,700, on which they have no endorser or other personal surety than Stansbury himself.

The relationship of creditor, principal debtor, and surety, lays the creditor under certain obligations, which he is not allowed by either a court of law or equity to violate with impunity. Although, as between obligee and surety, there is no obligation of active diligence against the principal; and delay, unaccompanied by fraud, or a positive agreement with the principal, will not operate as a release of the surety; yet, if a creditor undertakes, by express stipulation, to extend the time of payment, or to allow the principal to pay by installment; or if the obligee begins to sue the principal and afterwards gives time; or if the creditor in any manner waives, or postpones his right to sue immediately the debt becomes due, the surety will be discharged, as well at law, as in equity. Because, immediately, on the next day after the debt becomes due, the surety has a right to file his bill here, to force the creditor to bring suit; and, therefore, an express and stipulated indulgence given [**13]  by the creditor to his principal debtor is fatal to his claim against the surety, since it deprives him of this equity.

The taking of a mortgage by the creditor from the principal debtor, is calculated to inspire the surety with confidence. He is thereby induced to relax in his vigilance; and to forbear obtaining a sufficient guaranty as an indemnity against his eventual liability. Such a mortgage becomes a trust for the direct interest of the creditor, and also, for the direct benefit of the surety. From such circumstances, therefore, an equity arises, that the creditor shall not invalidate, or by any wilful act vitiate his mortgage security to the prejudice of the surety. And also, because the surety, should he be compelled to pay the debt, has a right to call upon the creditor to be put into his place, in all respects; since, in equity, or such an event, he becomes entitled to be considered as the substitute of the creditor; and to have the mortgage, and all other securities given by the principal debtor, assigned to him. And this right of the surety stands not upon any thing expressed in the contract, but is based upon the principles of natural justice.

The principles [**14]  in relation to double securities and marshaling assets do not strictly apply; but, they have a bearing which fortifies and illustrates the equity by which this case is governed. In those cases, where a creditor has two funds, he shall take his satisfaction out of that fund upon which another creditor has no lien, or which he cannot reach. This, however, is done for the benefit of creditors, not of the debtor, though it arises out of his acts, and he does receive benefit from it. This doctrine, in relation to double securities, and marshaling assets, has been long established here; and is, I am inclined to believe, carried farther than in England. To illustrate this matter, let us suppose, in this instance, that Elizabeth Edwards was dead, and that the proceeds of her real estate were now here to be distributed among her creditors. If the bank were to present their claims, as founded on these notes of Edwards, endorsed as surety for Stansbury, the court would require them to show, that Stansbury, the principal debtor, was insolvent, before they would be allowed to come in for a distributive share of Edwards's assets. This marshaling of the assets and securities would be made only, at [**15]  the instance, and for the benefit of Edwards's creditors; yet her representatives might also receive material benefit.

But, in this case it is a surety, not a creditor, who asks to have the burden of this claim shifted over from one point of pressure to another. It is the surety who wishes the creditor to be directed to take his satisfaction from his principal debtor, so far as he can obtain it, before he is allowed to demand payment of the surety. It is believed, that a Court of Equity has never, in any case, gone so far, at the instance of a surety, as to turn a creditor away from one fund upon which, according to the express terms of the contract, he had a fair and an unquestionable claim, to seek payment from another, as he could, and which might, or might not, be made effectual. Nothing can be more delicate than the interference, either of the Legislature or of the Court of Chancery, taking away those stipulated rights which the debtor has thought fit to grant. Such an arrangement, or marshaling of securities, it seems to me, would be pressing too closely upon that constitutional restriction, which forbids even our Legislature from impairing the obligation of contracts. The [**16]  surety is the guarantee, and it is his business to see, whether the principal pays, and not that of the creditor.

But, where nothing is hazarded, and every thing may be attained which was contemplated by the parties, when they entered into the contract; in such case a court of equity may fairly, and safely interpose; because, by doing so, it does not, in any sense, impair the obligation of the contract; but a new and equitable direction is given to it, for the prevention of wrong, and for the purpose of doing more ample justice to all. And, therefore, where it is shown, that the creditor has the clear means of making his demand effectual, and there is no risk, delay or expense; as when the money was in the next room, or an ample indemnification against the consequences of risk, delay and expense, the surety has a right to call upon the creditor to do the most he can for his benefit. As if the surety deposits the money, and agrees that the creditor shall be at no expense, he may compel the creditor to prove under a commission of bankruptcy, and give the benefit of the assignment to the surety in that way. Other examples might be adduced equally strong to show, that a creditor may,  [**17]  under circumstances, be called on to act for the benefit of the surety. In those cases, it is not by force of the contract; but of that equity upon which it is considered against conscience, that the holder of the securities should use them to the prejudice of the surety, where he himself can be exposed to no risk whatever.

Here it is clear, that the mortgage comprehends all the debts due by notes from Stansbury to the bank, as well those for which Edwards, as drawer or endorser, was surety, as all others. And it is certain, that the bank can run no risk in doing what is now asked; because the proceeds of the mortgaged property, are now in the hands of this court, or of the trustee, its officer, ready to be delivered over. To the extent of these proceeds, therefore, this creditor not only has the clear means, but the absolute certainty of rendering his demand effectual against his principal debtor. As the bank would not have been permitted to invalidate or enfeeble its mortgage to the prejudice of Edwards, so neither can they be allowed to shift and misapply its benefits to her disadvantage. If the bank chose to trust Stansbury on his note and mortgage alone, and they should sustain [**18]  any loss, they have only themselves to blame. It is enough for Edwards, and sufficiently maintains her equity, that the bank cannot lose any portion of the debt for which she is surety, by having that pledged property first applied towards its satisfaction, since it clearly formed a part of that aggregate amount of debt, intended to be secured by the mortgage.

Upon the whole, it is my opinion, that the proceeds of this mortgaged property, or so much thereof as may remain after all prior liens upon it have been fully paid, must be applied to the satisfaction of the total or aggregate amount of the sums of money due on notes by Stansbury to the bank; and that Edwards, as surety, is entitled to the equitable benefit of this application of these proceeds; and that she is liable to the bank for the balance and no more. As for example, if the bank should obtain from these proceeds only twenty-five cents in the dollar with interest, Edwards must be held liable for seventy-five cents in the dollar with interest, to the amount of which she was surety and no more.

Wherefore it is ordered, that this case be, and is hereby again referred to the auditor, with directions to state an account [**19]  or accounts according to the principles that have been thus explained and determined.

The complainants afterwards on the 17th of July, 1826, petitioned the Chancellor for leave to amend their answer to the petition of Elizabeth Edwards for the purpose of introducing therein a variety of facts which were unknown to the Chancellor at the time of the hearing, and that a re-hearing may be had, &c. Accompanying the petition were several affidavits, with a list of the notes drawn by the said Edwards, &c.

BLAND, Chancellor, (July 19th, 1826) after hearing the solicitor of the petitioners on the foregoing petition, and considering the same, together with the proceedings.--Ordered, that the said petition be dismissed with costs. From which several orders in the premises the complainants appealed to this court.

The auditor afterwards, on the 1st of May, 1827, reported an account, and thereby applied the nett proceeds of the sales, to the payment of the trustee's commission, costs of suit, ground rents and taxes, the prior mortgage to Richard Sommerville, and dividends on the amounts of the notes held by the bank.

The counsel of the parties entered into an agreement, after [**20]  the appeal was depending in this court, "that the affidavits filed by the appellee in support of her petition, and those filed by the appellants with the petition of the 17th July, 1826, be received as evidence in the cause, as if the same had been duly taken before the hearing of the same. And also the auditor's last report, be confirmed by the Chancellor, and be admitted as part of the record in this cause, as if the same had been done before the appeal was entered; and that all other audits be dispensed with."

BLAND, Chancellor, (25th June, 1828.) On consideration of the agreement this day filed,--Ordered, that the statement of the auditor be ratified and confirmed; and the trustee directed to apply the proceeds accordingly, with a due proportion of interest that has been or may be received.  

DISPOSITION:
Order reversed in part with costs. Affirmed in part.  

HEADNOTES:

The rule, that a court of equity will sometimes adopt a more liberal and enlarged construction than prevails at law, can never be tolerated, unless it be necessary to effectuate the motives which induced a contract.

Relief, by the doctrine of substitution, is never extended to a security, but upon the assumption that the creditor's debt has been, or is to be fully paid--that his further detention of the mortgaged property, is against equity and good conscience.

So where a mortgage was executed, for the purpose of securing the payment of all and every sum or sums of money, then owing, or which might thereafter be due and owing, from the mortgagor to the mortgagee, upon any promissory note, or notes negotiated or to be negotiated with the mortgagee, of which the mortgagor might be drawer, or endorser, or otherwise however, and upon sale of the mortgaged premises, the proceeds being insufficient to pay a note of the mortgagor's to the mortgagee, for which the latter had no other security than the mortgagee; it was held, that an accommodation endorser on a note of the mortgagors, discounted by the mortgagee after the execution of the mortgage and before the sale, could not call upon a court of equity to distribute the fund above mentioned, rateably, in payment of both notes.  

COUNSEL:
Kennedy for the appellants contended, that the Chancellor erred in his opinion as expressed in his orders in the cause, for the following reasons:

1. That Mrs. Edwards, who was the drawer of certain notes, which were discounted by the appellants for the use and benefit of William Stansbury, was not entitled to have the same [**21]  admitted to a rateable dividend upon the mortgage fund, until the appellants were satisfied in their principal debt of $ 8700 against Stansbury.

2. That there was error in directing the account to be so stated, as to include the notes of Mrs. Edwards, the fund not being sufficient to pay the note of Stansbury, which had been discounted upon the security of the mortgaged premises alone.

3. That the Chancellor erred in supposing, against the facts of the case, that the notes of Mrs. Edwards were in existence at the date of the mortgage, and designed to be secured by it.

4. That he also erred in the opinion, that the appellants were guilty of any laches in availing themselves of the mortgage fund, to the prejudice of the appellee.

1. Parol evidence is admissible to explain an equitable mortgage; also, that an absolute deed was intended as a mortgage Ex parte Langston, 17 Ves. 227. 3 Stark. Evid. 1052.

2. Mrs. Edwards has assumed the privilege of a surety. She cannot stand as a surety. He adverted to the case of Clopper vs. Union Bank of Maryland, 7 Harr. & Johns. 92. When the mortgage debt is paid, then the surety is to stand in the place of the creditor. Mrs.  [**22]  Edwards might come in for the surplus. Hays vs. Ward, 4 Johns. Ch. Rep. 123. Cheesebrough vs. Millard, 1 Johns. Ch. Rep. 409. Stevens vs. Cooper, Ib. 430. Wright vs. Simpson, 6 Ves. 734. Craythorne vs. Swinburne, 14 Ves. 164.

3. The notes of Mrs. Edwards, were not a substitute in the place of the notes drawn or endorsed by Middleton. If they were, such substitute could not have been for more than $ 500.

4. He denies the want of due diligence on the part of the bank. There was no application made to the appellants by the surety to proceed against the principal. Wright vs. Simpson, 6 Ves. 734. King vs. Baldwin, 2 Johns. Ch. Rep. 554.

R. Johnson, for the appellee. 1. Assuming Mrs. Edwards to be a surety of Stansbury, and as such, that she would have been entitled to the benefit of the mortgage. Has she placed herself in a situation to claim the protection of this court? The debt has not been paid; and the surety is entitled to the benefit of the pledge made for its payment to the creditor. Hayes vs. Ward, 4 Johns. Ch. Rep. 132. The proper time for applying to the Court of Chancery for apportionment has arrived. Ex parte Langston, 17 Ves. 227.

2. Is not Mrs. Edwards [**23]  to be considered as a surety, and entitled to protection as such, though she was not known by the bank? Clopper vs. Union Bank of Maryland, 7 Harr. & Johns. 92. Claythorne vs. Swinburne, 14 Ves. 170. The mortgage being of record, showed to the world, that whatever note was drawn or endorsed by Stansbury, came within the provisions of the mortgage.

3. Is not Mrs. Edwards entitled to be protected by the mortgage, equally with the other endorsers of the notes of Stansbury? The mortgage was not to pay any particular note or debt then due to the bank; and in the answer of Stansbury to the bill filed against him for a foreclosure of the mortgaged premises, he stated that he owed the bank $ 20,000. The decree by consent, was, however, to pay the complainants not exceeding $ 19,258. This sum covered the whole amount of all the notes of Stansbury, including those drawn or endorsed by Mrs. Edwards. There is nothing in the mortgage to show that it was to secure the preferred debt of $ 8700, arising upon Stansbury's note to the bank, on which there was no endorser; and no parol evidence can be admitted to contradict the mortgage.

4. The agreement relative to the evidence taken after [**24]  the decree, was not intended that the whole of what was contained in the affidavits should be used as evidence; but only such as was legally admissible. A great part of the facts proved, do not apply to the issue between the parties. Hayward vs. Carroll, 4 Harr. & Johns. 521. Jones vs. Slubey, 5 Harr. & Johns. 382. Westley vs. Thomas, 6 Harr. & Johns. 24, 27. The evidence is that the mortgage was executed to secure a particular debt due at the time. In the answer to the appellee's petition in the case under the agreement, the bank prayed to amend it, which the Chancellor refused to grant. The evidence was inadmissible on the ground that it contradicted the mortgage. It changes the legal operation of a particular clause in the mortgage. Westley vs. Thomas, 6 Harr. & Johns. 27. Watkins vs. Stockett, Ib. 435. The mortgage was to secure all notes drawn or endorsed by Stansbury.

5. The evidence is sufficient to show that the notes drawn by Mrs. Edwards, were a substitute for the notes which had been drawn by Middleton in favor of Stansbury, and by him endorsed to the bank; and that the notes so drawn by Middleton, were in the bank at the time of the mortgage.

Williams, (District [**25]  Attorney of U. S.) also for the appellee. The bank could not but know most of the transactions and intentions of the parties in 1822, rather than in 1826. The mortgage, bill, answer and decree were all in 1822, and show the clear understanding of the parties. Middleton's were clearly accommodation notes--commenced in 1821, and continued to August, 1822. They were then retired by Mrs. Edwards's notes, and not by the receipt of $ 9000. In Baltimore the borrowers on accommodation notes generally, almost universally appear as endorsors and not as drawers. All the notes are dated two years after the mortgage deed; and, therefore the terms of the mortgaged are insisted on. The notes of Middleton and of Mrs. Edwards, were expressly proved to be accommodation notes, this was proved by Stansbury. Certain depositions were filed after the Chancellor had decreed on the proceedings under the petition of Mrs. Edwards. The deposition of Pinkney contradicts that of Stansbury, and is contradicted by all probability and bank operations. The deposition of Stansbury contradicts his former deposition, and is contradicted by the deposition of Frisby, which is mostly to be relied on--Stansbury is a director [**26]  of the bank.

The bank cannot elect to apply this money. 1. Because the deed of mortgage forbids such election; and parol testimony is not admissible.

2. Because they signified a different election at the time of filing their bill, &c. Ham. Dig. 253. Devaynes vs. Noble, 1 Meriv. 608.

We appeal from the conduct of the bank in July, 1826, to their conduct in 1822; and insist on the decree of 1822. No parol understanding can be admitted to contradict the mortgage, bill, decree, &c. especially so as to affect third parties.

1. The bank do not pretend an ignorance that the notes of Mrs. Edwards were accommodation and not real notes, until after the decree of 1826. Yet Mrs. Edwards expressly states them to be accommodation notes in her first petition. But it is no matter whether the bank knew it or not, if they were really so. Her notes were substituted for those of Middleton; and are so proved. If they were not substituted; yet her notes are comprehended in the terms of the mortgage, bill, answer and decree, &c.

2. The bank had the power to limit all their discounts to within the value of the property; while Mrs. Edwards had no such control.

3. The late language [**27]  of the bank, and Pinkney's deposition are inconsistent with their being real notes.

4. Mrs. Edwards is prima facie entitled under the mortgage deed; and she is only to be thrown out by being shown to be a debtor. She relied on the mortgage as recorded. She does not ask for the money, but only asks for its proper application.

Taney (Attorney General) in reply.

The question is, whether or not the fund arising from the sale of the mortgaged premises, is to be applied to the payment of a particular note, mentioned in the mortgage, or pro rata, to the payment of the whole of the notes?

The mortgage was given to secure the debt of $ 9000, and neither the Bank, or Stansbury, understood or intended, that any other note was to be paid, or secured by it, until after the payment of that debt. This is proved by Pinkney and Stansbury.

The mortgage was for the benefit of the Bank, and not for the securities.

1. Independent of the parol evidence, what is the effect of the mortgage?--it was taken by the bank for its own benefit, not to indemnify securities. The bank could never have intended to place themselves upon the footing, on which the decree has placed them. The [**28]  liability of the endorsers, &c. was superadded to that of the mortgage. The endorsers have no equity--they were not deceived by the bank--the bank is not responsible for what Mrs. Edwards might have in view, or thought, or was informed on the subject, not proceeding from it, or its agency. The mortgage embraces all notes, whether Stansbury be drawer, or endorser, principal, or surety--suppose Stansbury, to be the endorser; then he is to come in, according to the decree as surety, and claim to be exempted pro rata--all securities are not of necessity to contribute pro rata, it depends upon the engagement entered into. Craythorne vs. Swinburne, 14 Ves. 160.

The mortgage was not to protect the securities at the expense of the bank.

Suppose Stansbury to be solvent, and able to pay his debts, could not the bank, go against Mrs. Edwards, and leave her to her remedy against Stansbury. She has no right to demand of the creditor any fund, until the creditor is satisfied. Could she come upon the fund, and compel the bank to proceed against Stansbury, if he was in a condition to pay?--4 Johns. Ch. Rep. 123, 124, 131. 2 Johns. Ch. Rep. 554.

Mrs. Edwards's notes were not substituted [**29]  for those of Middleton. Mr. Pinkney's evidence disproves that, and none of Mrs. Edwards notes correspond with Middleton's.

Mrs. Edwards was not a security on any of the notes when the mortgage was executed. Middleton's was a real and not an accommodation note.

2. If the parol evidence is admissible, it is conclusive. Is it admissible?--Between these parties it is, to shew what debt, it was the object of the mortgage to secure. The mortgage is no estoppel as to Mrs. Edwards, as she was no party to it. As between the immediate parties to the instrument parol evidence would be inadmissible; but the rule is different, as regards a stranger. There can be no estoppel, unless it is mutual. It operates between the parties to the instrument, but does not apply to strangers. 3 Stark. Evid. 1052, 1054. Craythorne vs. Swinburne, 14 Ves. 159, 168, 170.

The parol evidence is not offered to contradict the terms of the mortgage; but in aid of it, to shew the amount of the sum raised--who were the drawers, and who the endorsers.

This is not a case in which a regular issue is joined. A fund is in court, which two parties claim. The question was how the fund was to be distributed?  [**30]  Not to be placed before the court, by bill and answer, or any regular form of pleading. Nothing more was necessary, than to state the ground, upon which each party, claimed the fund.

3. It is said the bank was too late. That the decree for the sale changed the relative situation of the parties.

The Chancellor dismissed the petition of the bank, upon the ground that he had made up his opinion, as to the manner in which the fund should be distributed.

R. Johnson for appellee--In explanation of the rule as to the admissibility of parol evidence. The rule in relation to parol evidence is, that no one of the parties to the written contract, can introduce it, especially as against strangers to it. As between parties to the instrument, it might be admitted in some cases. Union Bank vs. Betts and wife, 1 Harr. & Gill, 175.  

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

OPINIONBY:
DORSEY 

OPINION:

 [*363]  DORSEY, J. delivered the opinion of the court. The rights of the parties in controversy in this cause, entirely depended upon the true construction of the mortgage from William Stansbury to the Union Bank of Maryland, bearing date the 27th day of July,  [**31]  1822. Its objects as set forth in the recital, was to secure the payment to the Union Bank of Maryland, of all and every sum, or sums of money then owing, or which might thereafter become due or owing from the said William Stansbury to the said bank, upon any promissory note or notes negotiated, or to be negotiated, at that bank, of which he was or might be either drawer or endorser. He is described as a merchant of the city of Baltimore, and it is apparent that by the execution of this deed, he designed not only to provide an indemnity to the bank for what he already owed, but to obtain for himself a credit at that institution, which would induce a more free discount or negotiation of notes, on which Stansbury's name should appear as either drawer or endorser. Such a facility is an object of primary importance to him who is engaged in commercial pursuits. Its value to Stansbury is manifest, enabling him to obtain an immediate accommodation discount of nine thousand dollars on his own note, without an endorser. In litigating these rights, it is competent for either party to prove, what notes drawn and endorsed by Stansbury, and discounted at the Union Bank [**32]  , existed on the 27th of July, 1822, when the mortgage was executed; and also all such as were negotiated at that bank, subsequently to that period. The first negotiation of Elizabeth Edwards's paper, was in September, 1822.
To this mortgage, Stansbury and the Union Bank alone were parties. Under it at law, no right was acquired, no interest passed; upon it, no action could be maintained but by the bank. All the circumstances which preceded its existence, and immediately followed its birth, demonstrate that the object of its execution was, not to indemnify those who were or might become his drawers or endorsers; but to ensure to the Union Bank, the payment of all notes negotiated by them, on which his name might appear either as maker or endorser. 'Tis 

 [*364]  true, if the fund had been sufficient, those who were on his paper, would in equity be protected from loss. But this was a consequence, not the design of his act. The legal construction of this instrument, is in strict accordance with what we have stated as the manifest object of its creation Such being the posture of the parties at law; upon what principle is it, that a court of equity can be called on [**33]  to change their condition? In construing agreements, it is said a Court of Chancery will sometimes adopt a more liberal and enlarged construction, than prevails at common law. But this latitude, if it exist at all, can never be tolerated, unless it be necessary to effectuate the motives which induced the contract. Here, no such necessity exists. The most perfect harmony prevails between the agreement executed, and the obvious intention of its framers. To adopt the interpretation of the mortgage, which was insisted on for the appellee, viz: that the property was conveyed to the bank, in trust to be appropriated rateably to the payment of all notes negotiated with them, of which Stansbury was either the drawer or endorser, would be to defeat a leading object of Stansbury in making the conveyance. Instead of giving additional credit to his name, and a consequent increase to his favors at the bank; it would have been the most effectual means which he could have adopted, to exclude himself from all further discounts. As he then stood, the payment of the nine thousand dollar note, was amply covered by the property mortgaged. But every additional discount in proportion to its amount,  [**34]  reduced the security for the payment of that note. So that should the bank have increased their accommodations to Stansbury to ninety thousand dollars, they would thereby have relinquished nine-tenths of the security, which they had previously held for the payment of the note of nine thousand dollars. Nay, such are the positive terms of this deed, if clothed with the attributes of a deed of trust, which are attempted to be affixed to it, that should Stansbury, holding a real note of the most opulent merchant in Baltimore, have obtained its discount at the Union Bank, eo instanti, such merchant might demand its entire, or pro rata payment out of Stansbury's mortgaged 

 [*365]  estate. The deed providing, not merely for the payment of notes negotiated for the account or accommodation of Stansbury, but of all notes bearing Stanbury's name, no matter for whom discounted.
The attempt to sustain the claim of the appellee by the doctrine of substitution, is equally untenable. Such relief is never extended to a security, but upon the assumption that the creditor's debt has been, or is to be fully paid: that his further detention of the mortgaged property [**35]  is against equity and good conscience. Can it be deemed an equitable substitution, which whilst it left in full force and unsatisfied, the just claims of a creditor, should wrest from him the fund specifically pledged for their payment, and leave him destitute of any other source to which he might apply for indemnity? If after satisfying all debts due to the Union Bank on Stansbury's notes by them discounted, there should remain a surplus of the mortgaged fund, to that amount, might the drawers and endorsers of his accommodation notes, who had made payments to the Union Bank, seek to be substituted?
The order of the Chancellor ratifying the auditor's statement, making a rateable distribution of the proceeds of sale of the mortgaged premises, between Elizabeth Edwards, and the Union Bank of Maryland, is reversed with costs, so far as regards the application of the funds to the payment of Stansbury's notes negotiated at said bank. The order, so far as it ratifies the residue of said statement, is affirmed.
This court will sign an order or decree, directing the trustee to pay the amount thus applied to the Union Bank of Maryland on account of William Stansbury's [**36]  notes to them for $ 8700.  

22 of 44 DOCUMENTS 

COALE, et ux. vs. BARNEY, et ux.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

1 G. & J. 324; 1829 Md. LEXIS 25 

December, 1829, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from the Court of Chancery. The bill, which was filed on the 29th of September, 1823, by the appellees against the appellants, and Hannah Kitty Chase, stated that John Eager Howard, by his deed of conveyance, bearing date the 28th February, 1793, did convey to William Paca, a certain lot of ground, situate in the city of Baltimore, upon the terms and conditions of the exhibit A, hereinafter set forth. That after the execution of the said deed, and in the life time of Samuel Chase, his daughter Eliza Chase intermarried with George Dugan and Mary Chase, the female complainant intermarried with William B. Barney, the other complainant. After which, Samuel Chase died, and on the 2d of October, 1813, George Dugan died intestate, and without issue of the body of his wife Eliza. That Eliza, his widow, acquired in her right as his wife, a large amount of property, which placed her in very comfortable, if not affluent, circumstances. That Mary, the female complainant, having several children, and being in straitened circumstances, owing to the misfortunes of her husband in commerce, the said Eliza and Hannah Kitty Chase, the mother of Eliza and Mary, being desirous of bringing the said [**2]  property into immediate action and use, and for the benefit of all parties interested in the same, which would otherwise have remained useless, both to Eliza and Mary, during the life of their mother, did, together with John P. Paca, the son and heir of William Paca, and to whom the trust aforesaid had descended by the death of his father, and with the complainants, execute an instrument of writing, whereby they agreed and covenanted to and with each other respectively, according to the terms of the exhibit B, hereinafter set forth, a copy of which was filed with the bill, and the original of which was to be produced when required. That Eliza Dugan, about the 29th of January, 1818, intermarried with Skipwith H. Coale, and she has since wholly refused to do any act whatever, towards carrying into effect, the agreement and covenant aforesaid, and hath actually notified John P. Paca, and all the other parties interested, that she will never consent that the same shall be carried into effect. That in consequence of such, her refusal to comply with her said agreement, such persons as are desirous of taking leases upon the said lot of ground, have been and still are deterred from doing so;  [**3]  and John P. Paca being but a trustee, and knowing that Eliza is in justice and equity bound to fulfil her agreement and covenant, is yet unwilling to incur the hazard which he apprehends from executing the power of attorney aforesaid. That by the bad faith and refusal of Eliza, the complainants are greatly damnified, and scarce possess the means of providing for the subsistence, much less for the education of the children of Mary. That she and her sister Eliza were educated and entered life together, and Eliza, at the time of executing the said contract, and until her last intermarriage, was altogether childless; while Mary, who is the youngest sister, was the mother of several children, and hath since had several others, for whose maintenance and education, tenderness and duty alike have always heretofore, and now doubly prompt her to provide. The bill had a general interrogatory, and also a special one as to Eliza's conduct, and whether she did not execute the aforesaid agreement in manner and form, and under the circumstances aforesaid, and prays that Eliza may be compelled to do all such acts in the law as may be necessary specifically to put into execution her contract or agreement [**4]  aforesaid, according to its true intent and meaning, &c. The bill also prays for all relief proper in the premises.

The Exhibit A, is a deed from John Eager Howard to William Paca, dated the 28th of February, 1793, whereby in consideration of the sum of five shillings, the said Howard conveyed to the said Paca, his heirs and assigns forever, all that part of a parcel of a tract of land called Lunn's Lot, beginning for the said part at, &c. containing 2 1-8 acres of land. To have and to hold the following part of the said parcel of land beginning, &c. containing one half acre and one thirty-second part of an acre of land, unto the said Paca, his heirs and assigns forever, in trust to and for the uses, &c. that is to say: In trust for the use and behoof of Samuel Chase and Hannah Kitty Chase (wife of the said Samuel Chase) for and during their joint natural lives, and the life of the survivor of them; and after the death of the said Samuel and Hannah Kitty, to have and to hold one undivided moiety or half part of the said land and premises, in trust for the use and behoof of Eliza Chase, daughter of the said Samuel and Hannah Kitty, and the heirs of the body of the said Eliza Chase,  [**5]  and to have and to hold the other undivided moiety or half part of the said land and premises, in trust for the use and behoof of Mary Chase, daughter of the said Samuel and Hannah Kitty, and the heirs of the body of the said Mary Chase; and in case of the death of either Eliza or Mary without issue, cross remainders between them in tail, and with remainders over to Samuel and Thomas Chase (sons of the first mentioned Samuel) in distinct halves in tail, with cross remainders in tail between them; and with final remainders to Ann Chase (daughter of the said Samuel) as to one half, and to her heirs in fee simple; and, as to the other half, to Matilda Ridgely (another daughter of the said Samuel) in like manner. To have and to hold all the residue of the said part of the parcel of land, first above mentioned and described unto the said Paca, his heirs and assigns forever, in trust to and for the several and same uses, intents and purposes before mentioned, of and concerning the part of the said parcel of land last above mentioned; and on the further trust, &c.

The Exhibit B, is an agreement entered into on the 27th of November, 1813, between John P. Paca, Hannah Kitty Chase, Eliza [**6]  Dugan, William B. Barney and Mary his wife, reciting that "John P. Paca is at this time seized in fee simple, in trust for the said Hannah Kitty Chase, Eliza Dugan and Mary Barney, of and in a certain piece or parcel of ground, in the city of Baltimore, fronting on Lexington street, the breadth of 175 feet, and on Eutaw street, 186 feet, and binding westwardly on Walshes alley, and on the south with an alley called Chases alley, which piece or parcel of ground is at present unimproved. And whereas, it is thought by the parties interested, that it would be for their mutual benefit, that the said property should be divided into lots, and demised for ninety-nine years, with liberty of renewal, for such rents as may be thought reasonable by the parties interested, to be reserved by the said leases, payable annually during the said terms. And whereas, by reason of the distance of the said John P. Paca's residence, from this city, it would be inconvenient for him to execute the said leases, and to attend to the collection of the said rents, now, therefore, these articles witnesseth, that the above mentioned John P. Paca, Hannah Kitty Chase, Eliza Dugan and William B. Barney and Mary his [**7]  wife, have mutually and separately for themselves, their heirs, executors and administrators, agreed and covenanted, to and with each other, respectively, and to and with their respective executors and administrators, that the said John P. Paca shall, and will, by a good and sufficient power of attorney, by him duly executed, constitute and appoint Cumberland Dugan, of the city of Baltimore, his attorney, for the purpose of executing such leases, and giving thereby full power and authority so to do. In which leases, the rents shall be reserved to be paid to the said Cumberland Dugan, his executors or administrators, in trust for the said Hannah Kitty Chase, Eliza Dugan and Mary Barney, in the following proportions: In trust as to one half of all such rents to be paid to the said Mary Barney's sole and separate use, during her life, annually, to her, and after her death to be paid to her children, their executors or administrators, in equal shares; to be discharged, during her life time, by her receipt," &c. And as to one fourth part of the said rent, in trust to be paid to the said Eliza Dugan, her executors and administrators. And as to the other fourth part, in trust to be paid to [**8]  the said Hannah Kitty Chase, during her life, and after her death, to the said Eliza Dugan, her executors," &c. Signed and sealed by all the said parties.

The only answers material, were those of Coale and wife. They answered separately. Coale answers as to his hearsay and belief, that Mrs. Chase had not performed the consideration, on which the said agreement was founded,--that of barring the entail of the said lot or parcel of ground, by uniting in a conveyance; that she had made leases of the ground in question; that Barney and wife had mortgaged their estate in it, and that the agreement had been abandoned. Mrs. Coale in her answer alleges, that her mother agreed, but now refuses to unite with the other persons having the remainder in tail, to bar the entail, which was the consideration of the agreement of leasing. That the agreement, except upon that consideration, was without inducement or consideration at all. That she had notified her opposition to the leases of the property, because her mother had violated the understanding on which the agreement was entered into. That she has children now, and that she offered to let the agreement be executed, if she should be allowed [**9]  one half of the three-fourths of the rents.

The complainants and defendants counsel on these answers coming in, ordered the register "to file the general replication," and to issue a commission to a person named by them. An agreement was entered into, to set the cause down for hearing at December term, 1825, with liberty to either party to examine witnesses under a commission.

BLAND, Chancellor, (December term, 1825.) It appears from the proceedings, that the articles of agreement mentioned in the bill of complaint, bearing date on the 27th of November, 1813, ought to be specifically performed and executed, according to the true intent and meaning thereof, as prayed.--Decreed, that Cumberland Dugan be, and he is hereby constituted and appointed a trustee for the purpose of executing and performing the said agreement; and the said trustee, shall immediately proceed to make such a lease or leases, of the piece or parcel of ground described in the said articles of agreement, in such manner and upon such terms as he shall deem most advantageous and beneficial to all the parties concerned and interested in the same. In which lease or leases the rents shall be reserved, and made [**10]  payable unto the said trustee, his heirs and assigns, in trust for the said Hannah Kitty Chase, Eliza Coale, and Mary Barney in the following manner, to wit. In trust, as to one half of all such rents, to be paid to the said Mary Barney's sole and separate use, during her life annually to her, and after her death to be paid to her children, their executors or administrators, in equal shares; to be discharged during her life time by her receipt, &c. And as to one fourth of the said rent, in trust, to be paid to the said Eliza Coale, her executors and administrators. And as to the other fourth part, in trust, to be paid to the said Hannah Kitty Chase during her life, and after her death to the said Eliza Coale, her executors, &c. Decreed also, that Coale and wife pay all the costs of this suit. From this decree, Coale and wife appealed to this court.  

HEADNOTES:

Upon a merely equitable estate, no writ of partition can be maintained at law.

A failure to comply with an engagement to do a mere nugatory act, ought not to impair the rights of a complainant in equity to relief, when the facts of his case, otherwise concur, to sustain his bill.

An agreement was entered into, on the 27th November, 1813, between the cestui que trusts for life, and remainder in fee, and the trustee, of a certain trust estate, held by the latter in fee, the object of which was to lease out the trust property then unimproved, and secure to the cestui que trusts in remainder, an immediate participation in the rents. For that purpose it was agreed, that the trustee should appoint an agent, to make leases for ninety-nine years, with liberty of renewal, for such rents as should be thought reasonable by the parties interested, payable annually during the terms, to the agent in trust, as follows:--viz. one half to one c. q. t., in remainder, during her life; and after her death, to her children, their executors and administrators; one fourth to another c. q. t., in remainder for life, with a similar reservation to her children, &c. The other fourth, to the c. q. t. for life, during her life, and after her death to the last above mentioned c. q. t. in remainder, her executors and administrators. On the 29th September, 1823, a bill was filed by two of the c. q. t., against the third, for a specific execution of the agreement, upon the ground that the defendant, since the year 1818, had prevented the execution of the leases, and refused to do any act, towards carrying the contract into effect. This charge being established, and it appearing that the parties were near relations, and that the complainants had made frequent efforts for an amicable arrangement, IT WAS HELD, that there was an adequate consideration to support this agreement, for the violation of which damages to the full extent of the injury sustained, might be recovered; that the complainants had not slept upon their rights in such a way, as to shew the contract had been abandoned; that Chancery has power to grant adequate relief, which could only be done by providing the means, necessary to carry into effect the leading object of the parties, the leasing the property at reasonable rents; and that in doing this, it was the duty of the court, to gratify the minor provisions of the agreement, so far as it could be done consistently, with the accomplishment of the grand design.

The defendant, in this case, was deemed to have forfeited the right of fixing the reasonableness of the rents, to be reserved in the leases referred to in the preceding contract, by shewing her determination to act in such a way, as to render her exercise of that right wholly inconsistent with the relief due to the complainants, and her right was therefore transferred to a trustee appointed for the purpose of executing the agreement; which trustee was enjoined to execute leases, for such rents, as he, together with the complainants, should think reasonable.

Where an agreement contains provisions, which, by reason of some technical principle of law, cannot be carried into effect, according to its literal import, it is the duty of a court of equity, for the sake of the intent, to give it that construction which the rules of law will tolerate; and the intention of the parties, to be collected from the whole instrument, will justify.

So the interests of the cestui que trusts, in remainder, in the property referred to in the preceding agreement being real, and not personal estate, and as such, could not be limited to their executors and administrators. The court decreed the rent to be paid to the c. q. t. and their heirs, and this as to all the parties entitled to such rents. 

COUNSEL:
Mayer, for the appellants, insisted. 1. That the agreement for leasing the property was inoperative, and could not be regarded by a court of equity. 2. That the bill, answers and proceedings, do not present a case fit for the cognizance or specific interposition of Chancery. 3. That it was the duty of the complainants to allege the equitable [**11]  merits of their claim--leaving no doubt of those merits. 4. That the bill shows no equitable right; and the answers of the appellants, rebut all pretensions of the bill. 5. That upon the bill, answers and proceedings, the decree was erroneous.

1. The answer of the defendant Mrs. Coale, is strictly responsive to the bill; and although there is a general replication, and no testimony taken, yet it was incumbent on the complainants to prove their case. The case must be considered on the bill and answers. The complainants must satisfy the court, that the agreement to be enforced is liable to no suspicion, and equitably fit to be carried into effect. 2 Pow. on Cont. 222. Seymour vs. Delancey, 6 John. Ch. Rep. 222. 1 Madd. Chan. 321.

2. The agreement cannot be enforced. It depended on the discretion of Mrs. Coale, whether she would carry it into effect, or not. Equity can have no cognizance of it. The agreement gave Paca no more authority than he before possessed. He had no power to lease. For the non-fulfilment of the agreement none but nominal damages were sustained. Voluntary covenants are not to be enforced in equity, 1 Madd. Chan. 321, 327, 328. Minturn vs. Seymour, 4 Johns.  [**12]  Ch. Rep. 497. Nor in any case, where none but nominal damages can be recovered at law. 1 Madd. Chan. 288, 321, 328. Stapilton vs. Stapilton, 1 Atk. 10. Here only nominal damages would be recovered for refusing to permit Dugan to be appointed an attorney to make the leases. It was only a covenant for the delegation of a power. How could a decree be made to enforce the agreement? It is true, the Chancellor has passed one, constituting Dugan the attorney to execute the leases; but it is wholly inequitable. Mrs. Barney is one of the complainants. She makes no concession, and has no right to call for the execution of the agreement.

3. But there has been laches fatal to the complainants' case. The agreement was entered into in 1813, and the bill was filed in 1823. Specific performance will, therefore, be refused. 1 Madd. Ch. 239, 330. Marquis of Hertford vs. Boore, 5 Ves. 720 (note 6.) Guest vs. Homfray, Ib. 818, 822.

4. There is no allegation in the bill that the property could be leased upon advantageous terms.

5. The answer of Mrs. Coale is separate from that of her husband. Husband and wife must answer jointly. Cooper's Plead. 24, 30.

Winchester, for the appellees.  [**13]  The whole of what has been urged, by the counsel of the appellants might be admitted, as having nothing to do with the case before the court. The defendants who resisted this proceeding, must sustain their case by proof in support of their answers. The answers are not responsive to the bill. The agreement is a common one to change the situation of the title to the property. It is a contract for a valuable consideration. The interest in the property was in Mrs. Chase during her life; and she and her daughters with a full knowledge of the subject, executed the agreement. There is no remedy for enforcing it, unless it can be enforced in equity. The court of chancery can enforce this contract. 1 Madd. Ch. 286. If the allegations in Mrs. Coale's answer, were all proved, yet they have nothing to do with the claim set up by Mrs. Barney, to have the agreement carried into effect. But there is no proof of any of the allegations in the answer of Mrs. Coale. The agreement is admitted--there is no suspicion of its improper execution.

But it is urged that the complainants have sustained no damage, or if any, only nominal damages. Suppose at law, it was proved that the property could have been [**14]  leased for $ 1,500 or $ 2,000, but for the objection of Mrs. Coale to execute the agreement, would Mrs. Barney be turned off with nominal damages. It is also alleged that there is no equity set forth in the bill. This is never done where it is for a specific execution of a contract, as the contract is to speak for itself. The non-execution of the contract is shown by Mrs. Coale in her answer, shewing, that she prevented its execution. It is admitted that voluntary covenants or contracts are not enforced in equity; but it is denied that this is a voluntary contract within the meaning of, 1 Madd. Chan. 321, 327.

It has been said that the complainants have been guilty of laches. This must depend upon all the circumstances of the case, and the connexion of the parties to each other.--Here were sisters, who no doubt, were not desirous of going to law, It is not similar to the ordinary cases, of persons wholly unconnected by relationship. It is not a contract of purchase and sale; but it is a family compact in which all had a right to move. Forbearance, therefore, was a duty, and it was meritorious. Mrs. Coale, in her answer, shows that the subject was constantly a source of correspondence [**15]  between her and her sister, &c. and that a new agreement was at one time in agitation.

Taney, (Attorney General) and Mayer in reply.

1. The court will observe that the real estate in question in the cause stands conveyed to Mrs. Chase for life, with remainder as to one moiety to Mrs. Coale, the appellant, in tail general, and as to the other moiety to Mrs. Barney, the appellee, also in tail general. The leases contemplated by the agreement, which is sought to be enforced, reserve one fourth of the rents to Mrs. Chase for life, another fourth to Mrs. Coale, and "her executors and administrators," and the remaining half to Mrs. Barney for life, and to her children, and their executors and administrators after her death, and reserving further to Mrs. Coale and her "executors and administrators," after Mrs. Chase's death, the part of the rents secured to Mrs. Chase. The result of this prescribed reservation of rents is, that Mrs. Coale has only a life estate in the rent assigned to her, and that after her and Mrs. Chase's deaths, the rents as to one half, will entirely cease, neither accruing to the children of Mrs. Coale as her heirs, nor devolving upon Mrs. Barney or her children,  [**16]  by force of any constructive limitation, and the tenant will enjoy half of the ground free of rent. Co. Litt. 47 a. 2 Roll. Abr. 289, 450. Dyer 45. 12 Co. 35. Cro. Car. 290. This is manifestly a most unreasonable stipulation, and so glaringly unjust to Mrs. Coale and her children, that we presume the court will not effectuate an agreement, that involves such a forfeiture of prior admitted rights. If Mrs. Coale had an estate tail general in the land, the rents in all fairness ought to be co-extensive with such an interest, and any retrenchment, especially one which injures her without benefiting the other parties, must be pronounced inequitable in the agreement under consideration. We are told, that "every agreement to merit the interposition of a court of equity in its favor, must be fair, just, reasonable, bona fide, certain in all its parts, mutual, useful, made upon a good or valuable consideration, not merely voluntary." 2 Powell Contr. 221. 3 Ves. 420. 4 Ves. 480. 9 Ves. 608. Now, regarding the ineffectual reservation of rent as to Mrs. Coale, if this agreement be tested by the rule we have stated, it will be found without any of the equitable qualities, that agreements must have [**17]  to be countenanced by this court and specifically enforced. Can it be said to be "fair, just and reasonable," that Mrs. Coale and her children should be thus cut off from the substance, of nearly her whole estate in this land? If not--where, looking to the other elements of the rule, can it be shown that the agreement in this respect, is "mutual," or has a good, and valuable consideration? Can it be urged that the enjoyment of one fourth of the rent for her mother's life, is any equivalent for the privation of valuable estate in tail general, and the disinheritance of her children? The suggestion will not bear an argument.--By all the principles then that govern the jurisdiction of the court in such cases of specific performance, this agreement cannot be sustained and carried into effect according to its terms, and the court must consequently repudiate it unless they have some power paramount to the literal terms of the writing, by which they may give it effect without doing the injustice we have spoken of. Have the court this power of substituting phraseology, and decreeing, as if the agreement reserved the rent conformably to the estate--to Mrs. Coale and her heirs?

We are told [**18]  that courts of equity can no more make contracts for men than courts of law. Lord Mansfield, Hoth am vs. East India Company, Doug. 277. The construction of a contract is all that courts of Law, or even of equity ever pretended to;--not the formation of contracts. Courts of Equity, acting as to the form and mode of giving effect to contracts may be supposed to have gone the length of even devising new contracts, so as to bring into operation the so called spirit of the contract. But it will be found, that the contract in its prescribed boundaries is the text which they respect, and although courts of equity assume a discretion as to the mode and form of assuring the benefit of the contract, the sphere of that benefit is always the express and defined scope of the contract itself. It is true that courts of Equity in regard to charitable uses, exercise a sort of controling discretion, and execute the general intention of the party, as denoted, without any regard to limitations or any of his specific views, where the statute opposes them. But this power is given by the statute of charitable uses, or derived from it, at least, by construction. At common law, no such power is asserted in [**19]  any judicature. The cy-pres performance of conditions, for instance, does not presume to transcend the express limitations--but the doctrine simply requires that so much of the assigned condition as can, shall be fulfilled--but it sanctions no constructive equivalent--no discretional substitution. The most obvious and noted instances of the seeming departure of courts of Equity, from the terms of contracts in dictating specific performance, are cases of marriage settlement. 1 Newl. Cont. Ch. 19. Pow. Con. 40. But on examination it will be found, that the courts do not there enlarge or contract the scope of the benefit as declared and defined by the contract--or increase or diminish the persons or objects to be benefited, as explicitly set forth by the contract itself. Thus where there is an agreement in consideration of marriage, to settle an estate on the husband and the heirs of his body from the marriage, a Court of Chancery very properly esteem the children of the marriage within the marriage consideration, and included in the "heirs of the body," and, inferring that those heirs are to be benefited, (just as the common law in all estates tail infers,) an agreement of such a tenor,  [**20]  is executed in Chancery by a strict settlement on the husband, and his sons and the heirs of the body of such sons. But here, and so in all the instances in the books, the court acts within the range of the expressed contract; its test being that it shall have no occasion to superadd any thing to the contract in order to consummate it;--and adopting the safe principle, that the court shall not take upon itself the sentiments, and identify itself with the situation of the party, but interpret his views as his words denote and limit them in his contract--when all fair equitable circumstances concur to incite it to act at all.

Courts of equity have the same principles that Courts of law acknowledge in defining and circumscribing their discretional power; but acknowledge the actual convention of the parties as the only subject of their consideration, and its declared scope, therefore, as marking out the latitude of their discretion. And without the principles which have been asserted, no such thing as a defined contract can exist, and judicial power will supersede all private right, and judicial discretion be desultory and boundless. Now, if the agreement in question in this cause [**21]  were silent as to the appropriation of rents, equity, according to common law itself, would give them to the holders of the estate. But here the terms of the leases in this particular are unequivocally limited--and no other appropriation can be made that will not contradict the express reservation. Expressio unius est exclusio alterius. The conclusion, therefore, must be that the court cannot add, or interpolate, any words to give the contract a just and legitimate effect; and, unable to execute it as it exists with all the inequitable consequences it now involves, they will leave it, to avail as it may at common law.

2. There is another circumstance which appears to us conclusive against the interference of the court for the specific performance of this contract. The citations we have made show that a contract, to be entitled to specific performance, must be mutual--all parties must be bound to perform it.--To use lord Eldon's words, 2 Powell, 232, 234. 4 Ves. 849, "all parties must be bound, or none."--Now, how stands this point of reciprocal co-equal obligation in regard to the present agreement? The agreement is between Mrs. Chase--Mrs. Barney and her husband--and Mrs. Coale,  [**22]  while a widow. Will it be said that Mrs. Coale could legally, or even equitably, enforce this contract against Mrs. Barney, whose proper estate was the subject of her (Mrs. B's) engagement? It is the legal liability that is the test of the proper mutuality; but at all events, equity follows the law in the case of a married woman's agreement, who has no special disposing power given her under which she may make it. Besides, too, where no damages are recoverable at law on a contract, equity will not enforce it--and upon that principle alone, then, the contract could not be enforced in equity against Barney and wife. 2 Powell, 242, 252.

It may be said that this latter principle is too generally stated--but it will be found substantially correct. The only exceptions to the rule in its literal scope, being where the inability to recover on the contract at law, arises from want of form in the contract,--or where the relation between the party claiming and the party liable makes a suit technically impracticable, as in case of husband and wife. 2 Powell, 17.

Here there is a manifest want of the mutuality which is an essential property of all contracts that may be specifically enforced [**23]  in equity. With that, too, falls all idea of a due consideration for the agreement. If Mrs. Barney could not be compelled to execute the contract, how oppressively unequal is Mrs. Coale's situation, if she is to be held liable;--and where then is the consideration for her being so? Mrs. Barney and Mrs. Coale held together the estate in the land, equivalent to a fee simple--and without Mrs. Barney's estate being brought into action, the agreement would be entirely inoperative. There is no ground to say, and can be no pretence, that Mrs. Barney had any peculiar disposing power over this estate beyond that which a feme covert has over any estate which she may have owned before marriage. This property was not even settled to her "separate use," in terms or effect;--which is necessary to make it equitably her separate property--that is: so as to give her any right to deal with it as if she were a feme sole. But in regard to real estate even thus made separate property, a power must be expressly reserved to the wife of disposing of it as a feme sole, else she has no special privilege in that respect. Now in this case, Mrs. Barney had before her marriage a trust estate in tail general--of [**24]  which she had no more right to dispose, except by deed with her husband and upon private examination, than if it were her legal as well as equitable estate. It is established that equity recognises no distinction between trust and legal estates in land in reference to femes covert or tenants in tail, or in any respect whatsoever where no special power of appointing is given by the assurance to the wife, or there be not some express and unequivocal stipulation to make the case an exception. If Mr. Dugan had made leases under the agreement they would have had no validity as to Mrs. Barney's interest, she being committed in them only by her agreement. If such would have been the case under the agreement, is there any ground for complaint that Mr. Dugan did not proceed to make these futile leases? and where then is the mutuality and consideration in reference to Mrs. Coale? And it may be asked, if the agreement would have authorised no valid leases as regards Mrs. Barney's interest, how can the decree of Chancery produce such effect, resting as it does on the efficacy of the contract alone, which, in the particular of Mrs. Barney's interest, is intrinsically nugatory.

3. There must [**25]  be great difficulty in framing a decree to carry this agreement into effect. Indeed no decree, consistently with the agreement, can pass, that shall be absolutely compulsive against Mrs. Coale's interest, or paramount to her and her husband's private judgment, as to the expediency and acceptance of the leases that may be proposed. The agreement refers to leases that reserves "such rents as may be thought reasonable by the parties interested." There is no doubt that Courts of Law and of Equity may judge of the reasonableness of considerations--but in no case can they exercise that authority where the "point of reasonableness is expressly referred to the judgment of the individual, and especially the interested individual." If the stipulation had been simply that "reasonable rents" should be reserved, the court might, no doubt, have determined the reasonableness. But that is not the stipulation in this instance.--And here the court, if they act at all on this agreement, must not only take from the party the right of judging the reasonableness of the rents, but, not even themselves exercising it, they must delegate it to a stranger--and make his judgment the imperative rule of our private [**26]  interests. The case, in this its essential aspect, involves grave and momentous considerations which, touching the high and sacred rights of individual property, must be obvious to the court, and will, we are assured, induce them to pause on the question of their jurisdiction--and however in the abstract they may deem that the parties ought to execute the agreement specifically, they will, and must, consider as a point of solemn interest how far they can, within their legitimate province, devise a mode of adversely executing it--and how far they may set aside the right of the individual's discretion, which is reserved in the contract as part of that disposing power of her property, consecrated by the Constitution and the first principles of natural justice.  

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

OPINIONBY:
DORSEY 

OPINION:

 [*339]  DORSEY, J. delivered the opinion of the court. Against any decree for the specific execution of the agreement mentioned in the proceedings in this cause, many distinct and independent grounds have been relied on, by the solicitors for the appellants. First, it was contended that the refusal of Hannah Kitty Chase, as alleged in the answer [**27]  of Eliza Coale, to perform her promise 

 [*340]  of uniting for the purpose of docking the estate tail; (which promise, it is said was the main inducement with Eliza Coale, to enter into the contract,) is sufficient to induce the court to withhold that relief which it might otherwise have been disposed to grant. Without deciding the question so warmly contested in the argument; whether the answer, without further proof, can sustain a defence thus founded on new, and as it were independent matter, (which it unquestionably could not, unaided by the unsafe and unusually comprehensive interrogatory in the conclusion of the bill of complaint,) it is sufficient to say, that this ground of resistance, is swept from the appellants, by the decision of this court in the case of Newton, et al. vs. Griffith, et al. 1 H. & G. 111, which determines that estates tail, to the heirs of the body generally, created after the first of January, 1788, are, by the operation of the act of descents, converted into estates in fee simple absolute. And this case cannot evade the rule thus established by the fact, that in Newton and Griffith, the question arose on the legal title [**28]  to land, here the principle is to be applied to an equitable interest. In this respect equity must follow the law. The alleged promise of Hannah Kitty Chase, to unite in docking the entail, was therefore an engagement to do a nugatory act; her failure, to comply with which, ought not to impair the rights of the appellees.
It can hardly be necessary to notice one of the objections relied on: that a Court of Chancery cannot enforce the contract against Eliza Coale, because it was wholly voluntary on her part; as she was to receive no consideration for her agreement to lease. If it be "no consideration" that the mother, a tenant for life, transfer one half her interest to her daughter, in property to which the daughter was entitled in remainder, to obtain the daughter's assent to such an improvement of the property, as would (for aught that appears in the record) produce inconvenience or loss to no person interested; but was indispensable to any beneficial enjoyment of it by the mother; it is difficult to conceive, what, in such a case, would be required, as an adequate consideration.

 [*341]  We are told by the appellants solicitor, that the great depreciation in real property,  [**29]  and especially in the city of Baltimore, is matter of public history, of which the court must judicially take notice, and that, although a regard to her own interest, might prompt Eliza Coale to agree to lease in 1813: yet the state of things is now entirely changed, and to enforce the agreement at this time, would be subjecting her to great hardship and loss. The condition of this country, in 1813, and a few years afterwards, was an accidental and unnatural one; the like may not again occur for centuries, and it is matter of sheer speculation and great doubt, whether the interest of all concerned would not be promoted by an immediate leasing of the property. But if there be hardship and loss in the case, to whom is it to be imputed? To Eliza Coale, whose refusal to perform her agreement, prevented the execution of leases, when rents had reached their most unreasonable height. Had she not thus refused, from that transfer by her mother, which is now called "no consideration," she would have received in rents, up to this time, a sum of money, greater in amount, than the entire value of her present interest in the property: and, independently of rents received, her interest [**30]  in the property would now have been four times as valuable as it is. In this she is not the only sufferer. But the consequences of this controversy are now visited, in a much higher degree upon her sister, Mrs. Barney.
It was also urged, that by another rule of chancery jurisdiction, the appellees were prevented from obtaining the interposition of a Court of Equity: viz. that where a party had a complete remedy at law, (as might here be had by a writ de partitione facienda:) or where nominal damages only could be recovered at law, a specific execution of the contract will never be decreed. In answer to this it may be replied, that the rule referred to has no application to the case before us. It does not appear that the lot of ground is susceptible of a division into moieties; and if it were, even if no life estate intervened, the estate of the appellees being merely equitable, no writ of partition could be sustained at law. That if it could, the condition 

 [*342]  of the parties, under such a proceeding, would be different from what it would be under the agreement. If partition were made at law, 'tis true, that Barney and wife, with Hannah Kitty Chase, might (as [**31]  is stated) lease a moiety of the ground, for ninety-nine years, renewable forever, reserving the rent to Mary Barney and her heirs; but, non constat, that she would be willing to do so. She might with convenience assent to giving her daughters three-fourths of the rents, reserving her life estate in the remaining fourth: yet it by no means follows, that she could conveniently bestow upon one daughter the entire rents of one half of the property; whilst the other half, in its unimproved condition, continued on her hands destitute of value. That so far from nominal damages only, being recoverable, for such a violation of contract, damages to the full extent of the injury sustained by the appellees, would certainly be recovered.
Another ground more strongly relied upon against the appellees is, that they have slept upon their rights, in such a way as to shew that the contract was abandoned. And many cases have been referred to, between vendors and vendees of real estate, in which a Court of Chancery has denied all aid to those, who have not been vigilant and active in asserting their rights; or, in the language of some of the cases, who have not been always "ready, desirous,  [**32]  prompt and eager," to comply with their portion of the contract, and to enforce on the other party, a like compliance with its stipulations. A contract to lease, say they, is to all beneficial purposes a sale; its effects being the same. This position would not be denied, if this controversy were between a lessor and lessee; nor would the conclusiveness of the authorities cited be questioned, if this were a case between vendor and vendee. The justice, the policy of this rule is most obvious; the grossest frauds and injustice would be practised, if it did not prevail. But for this, stale contracts virtually abandoned, though not formally released; in case of a sudden rise or fall in the value of the thing contracted for, would be set up, and the party complainant would unfairly gain what the party defendant would unjustly lose: an amount precisely equal, to the appreciation 

 [*343]  or depreciation which the property had undergone; could that, in any event, be the predicament of the parties to this suit? Certainly not. As regards enhancement or diminution of price, their interests are homogeneous, inseparable; profit or loss can happen to neither, without a proportionate participation [**33]  by both. Except in the class of cases adverted to, no authority has been produced to shew that for such laches and under such circumstances, as are before us, relief has been denied under the presumption of a waiver or abandonment of the contract. The delay of the appellees, in proceeding to assert their rights, is considerable; but it is satisfactorily accounted for, and the weight of the objection entirely fails when we reflect on the near relationship of the parties concerned, and look to the answer of Eliza Coale, and see what efforts were made to effect an amicable arrangement of the dispute, and that the door of negotiation is still open, and that this implied abandonment of contract is no where insisted on in the answer.
The answer does not state, nor has any proof been offered to shew, that the consummation of this agreement will work any particular hardship upon the appellants, or subject them to loss, inconvenience or sacrifice of any description. Why then, these appellants should persist in a course of conduct, by which they have already lost in rents, more than the value of their whole interest in the property, is inconceivable. The hardship of the case lies altogether [**34]  on the other side. A large lot of ground, as is stated in the agreement, lying "in the city of Baltimore" "unimproved:" owned by a mother for her life, with remainder in moieties to her two daughters in fee, is kept in a situation to be of no annual value to any of them, by the refusal of one of the daughters to permit its improvement in the usual and only practicable mode; when by complying with the solemn contract into which she has entered, she would relieve the wants of a needy sister and family, for whom she professes great affection and concern; and be herself invested with the immediate enjoyment of one half of that, to which she was only entitled in remainder; and this too, without lessening her interest in her other moiety.

 [*344]  The last ground, upon which a reversal of the decree was demanded, was; that it was erroneous, as much as it departed from the sense and terms of the agreement, in investing Dugan, the trustee, with the privilege of judging of the reasonableness of the rent: a privilege reserved to Eliza Coale, as one of the persons interested.
That this court have the power to grant adequate relief, in a case like the present, we have no doubt. Such [**35]  relief can only be had, by providing the means necessary to carry into effect, the great leading object of the parties; the leasing the property at reasonable rents: and in doing this, it is our duty to gratify the minor provisions of the agreement, as far as it can be done, consistently with the accomplishment of the grand design. To pass a decree, as is suggested, that leases should be made at such rents as Eliza Coale should sanction, would be doing a nugatory act. She has, by her conduct in this transaction, shewn a fixed determination that no leases shall be made, if she can prevent them: unless at a sacrifice, of the interests of her mother and sister, which she is not warranted in demanding. She has therefore forfeited this right, by acting, and shewing a determination to act, in such a way, as to render her exercise of it wholly inconsistent with that relief, to which the clear equities of the appellees entitle them. In transferring the power to another tribunal, the court know of none more safe, none so convenient, as the trustee by whom the leases are to be made and executed. So much of the Chancellor's decree therefore, as appoints Cumberland Dugan, trustee for the [**36]  purpose of executing and performing the agreement, and gives costs to the appellees should be affirmed with costs: but the residue of said decree must be reversed, because the leases are not decreed to be made for ninety-nine years with liberty of renewal, as directed by said agreement: and upon a ground not involving the gist of the controversy between the parties, and therefore, perhaps, not noticed in the argument: but which obviously appearing on the face of the decree, cannot be disregarded by this court. One fourth part of the rents received by the trustee, are directed to be paid to the said Eliza Coale, her executors 

 [*345]  and administrators; and in like manner, one other fourth after the death of the said Hannah Kitty Chase. The interest of Eliza Coale, in that portion of the rents, to her payable, under the deed from John E. Howard to William Paca, is real, not personal estate; and as such cannot be limited to her executors and administrators after the manner of personality. Such a limitation is contrary to the rules of law, and by it nothing passes but a life estate to Eliza Coale: her executors or administrators take [**37]  nothing. Vide 6 Ba. Abr. p. 21, tit. Rent. letter H. Tis true, the decree of the Chancellor has literally pursued the agreement; but where an agreement contains provisions, which, by reason of some technical principle of law, cannot be carried into effect according to its literal import, it is the duty of a court of equity for the sake of the intent, to give it that construction which the rules of law will tolerate, and the intention of the parties to be collected from the whole instrument will justify. This will be effected, by ordering the rents to be paid to Eliza Coale and her heirs instead of executors and administrators. As authorities to shew that courts of equity to gratify the intent, construe agreements even contrary to the words, we would refer to 1 Brid. Ind. 430. pl. 6--7, and to 5 Ves. 399. 1 P. Wms. 234.
Although the appellees do not appear before us, seeking any revision or alteration of the decree; yet as it is to be new-modeled to secure the rights of the appellants: such a change should be made in it, as will do equal justice to both parties. Instead therefore of Mary Barney's moiety of the [**38]  rents, after her death, being made payable to her children, their executors and administrators, as directed by the decree, it should be to her children and their heirs. And as the appellees have done nothing, which could authorize a court of Chancery to transfer to Cumberland Dugan the right, which by their agreement they have reserved to themselves, of deciding on the reasonableness of the rents reserved; the trustee should be enjoined to execute leases for such rents, as he, together with William Barney and Mary his wife, and Hannah Kitty Chase should think reasonable.
A decree, in conformity to these suggestions will be signed by the court.  

23 of 44 DOCUMENTS 

BERRY vs. GRIFFITH.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

2 H. & G. 337; 1828 Md. LEXIS 30 

June, 1828, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Montgomery County Court. This was an action of trespass q. c. f.--for breaking and entering the close of the plaintiff, (the appellant,) called Charles and Benjamin. The defendant, (the appellee,) pleaded not guilty, and issue was joined.

At the trial the plaintiff proved by a competent witness, that he, the plaintiff, had held the land and premises in the declaration mentioned, under the will of his father, always since the death of his father, until the time of the sale hereinafter mentioned. And the plaintiff read in evidence the will of his father, Richard Berry, and proved the same. By which will, dated the 26th of August 1818, the testator devised to his son Elisha D. Berry. (the plaintiff,) and his heirs, all the remainder of his tract of land called The Charles and Benjamin, not devised to his daughter Deborah. The will was proved on the 30th of November 1819. The plaintiff further proved by a competent witness, that the defendant had, after the purchase and sale by the sheriff, as hereinafter stated, directed one John Thomas the 3d, to cut timber tress on that part of said land, so before sold, as mentioned and described in the return of the sheriff hereinafter [**2]  stated, and that the said Thomas had accordingly cut and removed them therefrom. The defendant, for the purpose of proving the title and possession of the said land in himself, produced and offered to read the following records and papers, viz. A record of a judgment recovered in Montgomery county court in March 1820, in the name of William Willson, and Anna Maria Willson, his wife, against Elisha D. Berry, for $ 124 88 1/4 debt, $ 300 damages and costs. The damages to be released on payment of interest on the debt from the 19th of June 1816. This judgment was superseded by confession of judgment entered into by Elisha D. Berry, with Jannaro S. Farre and Alexander Young, on the 22d of February 1821, before one of the Associate Justices of the orphans court of the said county. Upon this confession of judgment a writ of fieri facias issued on the 4th of March 1822, against Berry, and his sureties. The sheriff returned the fieri facias, that he had laid it on all that part of the tract of land lying in Montgomery county, called Charles and Benjamin, which was devised to the said Elisha D. Berry by his father Richard Berry, to the value of $ 6,000. That after having given due and public [**3]  notice of the time, place, manner, terms, and cause of sale, he did on the 13th of August 1822, expose to sale the said part of the said tract of land which lies on the N W side of the public road leading from Rockville, in Montgomery county, to the city of Baltimore, supposed to contain 250 acres more or less, but found on an accurate survey thereof, by the surveyor of Montgomery county, to contain 242 3/4 acres, as will appear by the plot annexed and returned. That at the said sale Henry B. Griffith and Richard H. Griffith, then and there became the highest bidders and purchasers of the said last mentioned part of a tract or parcel of land, at and for the sum of $ 2,000, and which sum they had paid to the sheriff. Berry moved the court to quash the fieri facias, assigning certain reasons, which motion the court overruled. The defendant also proved by several competent witnesses, that the land in the declaration mentioned, is the same land which is mentioned in the return of the sheriff above, and that the said land was sold by the sheriff of Montgomery county at public sale, and that the defendant became the purchaser thereof, as stated in the amended return of said sheriff. That [**4]  the plaintiff was present at the said sale, and that it was at his request that the part of the land taken under the said execution, and so sold by the sheriff, was exposed to sale. That the plaintiff made no objection to the said sale, and that the defendant and Henry B. Griffith, then paid the purchase money to the sheriff, and the plaintiff thereupon paid a balance remaining unsatisfied of the executions in his hands of nine or ten dollars to the sheriff. That the day after the said sale the defendant, and his co-purchaser Henry B. Griffith, engaged one Washington Owen to enter upon the said land, (there being no house or enclosure thereon,) and take charge of the same, and directed him to authorise one John Thomas to cut down wood, and enclose the fields on the said land, which he did. And that the said land had always been held, and considered as a part of the dwelling plantation of the plaintiff, until the said sale. That after the said Thomas had cut down the said trees, the plaintiff called upon him to know by what authority he had so cut them, and Thomas replied on the authority of the defendant. The plaintiff replied that was all he wanted to know. The witness thinks Thomas [**5]  went on to cut some trees after the plaintiff had so called upon him, and carried those he had previously cut down, to the field which he enclosed with them on said land. That the said Thomas did enclose and cultivated said fields, and that the defendant, and the said Henry B. Griffith, have continued in such possession of said land so purchased, ever since. But the said witnesses proved that they had no knowledge, except what is above stated, of the defendant or Henry B. Griffith, (his co-purchaser,) having been in possession of said land, and that they supposed he had possession in consequence of his authority given to said Thomas to cut wood. The said Thomas had, before the said sale, by the leave of the plaintiff, taken down wood from said land for firewood. And the plaintiff further offered the record of an action of ejectment brought by the defendant against the plaintiff. This record sets forth an action of ejectment brought by Henry B. Griffith and Richard H. Griffith's lessee, against Elisha D. Berry, on the 23d of December 1822, for a tract of land called Charles and Benjamin, as described in the sheriff's return before mentioned, containing 250 acres. Which said action was [**6]  entered, on the 10th of November 1825, "off by plaintiffs." The plaintiff further proved by Richard Butt, a competent witness, and the deputy sheriff who made the sale, that there was land included in the sheriff's amended return which was not sold under the said execution to the defendant, but that the land on which the alleged trespass is said to have been committed, was sold as aforesaid. And the defendant proved by four competent witnesses, that all the land mentioned in the sheriff's return was sold as stated in the said return; and produced the receipt of said Butt to prove the same fact: "Received, August 13th, 1822, from Henry B. Griffith and Richard H. Griffith, two thousand dollars, for all the land lying on the north west side of the Baltimore road, called Charles and Benjamin, late the property of Elisha D. Berry, sold by virtue of a writ of venditioni exponas, at the suit of William Scott, and a writ of fi. fa. at the suit of William Willson, and Anna Maria his wife.

EE     Rich'd. Butt, for

William Clements, Shff. of Montgomery County."

And the plaintiff, in order to prove the irregularity of said sale, offered the following papers marked B, one of which [**7]  is admitted to be the inventory and appraisement, one the advertisement of sale, and the other a return which the sheriff had prepared and filed, and which was supplied by the amended return offered by the defendant, and which are as follow, viz. The appraisement was of "part of a tract of land called Charles and Benjamin, containing 500 acres of land more or less, valued at $ 6,000." The advertisement dated the 22d of July 1822, (certified to have been published in the Rockville True American for 21 days before the day of sale,) stated that the sale would be at the residence of Elisha D. Berry on the 13th of August then next for cash only, the following property, to wit: All the right, title, interest and estate, of Elisha D. Berry, of, in and to, part of a tract of land called Charles and Benjamin, containing 500 acres more or less, taken by virtue of a writ of fi. fa. issued from Montgomery county court, at the suit of Wm. Willson and wife, &c. A list of sales of the lands, &c. of Elisha D. Berry, sold under two writs of fi. fa. one at the suit of William Scott, and the other at the suit of William Willson and wife, the 13th of August 1822, "part of a tract of land called Charles [**8]  and Benjamin, lying on the N W side of the Baltimore road, containing 250 acres more or less--Jno. Thomas, 3d. (To be sold in 30 min. if not complied with,)

________________________________________________________________________________

	$ 2405 	
2d. Deborah D. Berry (do. in 10 min. do.)	2100 	
3d. H. B. & R. H. Griffith (do. 10 do. Pd. by H. B.	
  & R. H. G.)	2000"	
________________________________________________________________________________

Upon the evidence aforesaid the plaintiff prayed the court to instruct the jury that the defendant and Henry B. Griffith derived no title to the said land under the said sale, and that the plaintiff is entitled to recover. Which instruction, so as aforesaid prayed, the Court [Kilgour and Wilkinson, A. J.] refused to give 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:

A sheriff has a right, and it is his duty, in due time to correct his return to a fieri facias, so as to make it conform to the truth of the fact, whatever that may be, and to give it effect and legal operation.

It is not true, that land when taken in execution, must be described in the schedule returned with the writ and advertisement, of its intended sale, with technical minuteness.

A sheriff cannot sell what has not been levied upon under the fi. fa. but a general description in the schedule returned with the writ, and in the advertisement of sale, is sufficient.

The return should regularly, for the security of purchasers, describe the premises with precision; but it is enough, if the description be such, as that the property may be clearly identified.

A sheriff's return to a fieri facias, that he had laid it on all that part of the tract of land lying in M county, called C, which was devised to the said B, (the defendant in the writ,) by his father R, to the value of, &c. that after having given due and public notice, of the time, place, manner, terms, and cause of sale, he did on, &c. expose to sale the said part of the said tract of land which lies on the N W side of the public road leading from R, in M county, to B, containing 242 acres, and that G, then and there became the highest bidder and purchaser of the said last mentioned part of the tract or parcel of land, for the sum of $ 2,000, which he had paid to the sheriff, shows a valid sale by the sheriff.

A sheriff may divide, and sell a part of the premises levied upon, and advertised, and where that will satisfy the debt, he ought to sell no more.  

COUNSEL:
Magruder, for the Appellant, contended, that the court below erred in refusing the instruction to the jury as asked for by the plaintiff--1. Because the plaintiff's possession of the land entitled him to recover upon the evidence in the cause. 2. Because the proceedings of the sheriff under the fieri facias in the record produced by the defendant, and the sale made by him of the land upon which the trespass [**9]  was committed, were illegal and void. If the sheriff's seizure of property is not correct, he cannot afterwards make it correct. He must advertise and sell the property in conformity to his seizure. He cannot, if he advertised that the whole of a tract of land was to be sold, sell only a part of the tract. He cited Sheldon v Soper, 14 Johns. Rep. 352. Jackson v Stricker, 1 Johns. Cas. 284.

F. S. Key, for the Appellee. Can it be improper for a sheriff to sell a part of a tract of land, instead of the whole tract, when by a sale of a part the debt will be made? Why cannot the sheriff accommodate purchasers by dividing the tract, and selling it in parcels? Suppose a sheriff levies a writ of fieri facias on personal property, and advertises to sell the whole, can he not sell only a part, and in parcels, if by such sale he raises a sum sufficient to discharge the debt? In this case the land sold lay on the N W side of the road. The whole tract was divided into two parts by a tract running in between the whole tract.

Magruder, in reply. The sheriff's original return was incorrect, and he had no right afterwards to correct it, by stating in his amended return expressions which were [**10]  not used in the schedule returned by him. The schedule returned with the writ, and the advertisement of the land to be sold, differ from the expressions used in the special return as amended.  

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

OPINIONBY:
BUCHANAN 

OPINION:

 [*342]  BUCHANAN, Ch. J. delivered the opinion of the court. This was an action of trespass for cutting down trees in a close, alleged to be the close of the appellant, who was the plaintiff below.
The appellant claims title to the land on which the trees were cut, under a devise from his father; and the defendant rests his defence upon a purchase of the same premises by himself and Henry B. Griffith, from the sheriff of Montgomery county, at a sale by auction, in virtue of a fieri facias regularly sued out of the Montgomery county court. And the sole question presented to us in argument is, whether the sale made 

 [*343]  by the sheriff of the land on which the trespass is supposed to have been committed was a valid sale?
To prove that the sale was irregular and void, the appellant offered in evidence the inventory and appraisement, in which the land upon which the fieri facias [**11]  was levied, is described as "part of a tract of land called Charles and Benjamin, containing five hundred acres of land more or less," valued at $ 6,000. The sheriff's advertisement of sale, which is of "all the right, title, interest and estate, of the said Elisha D. Berry, of, in and to, part of a tract of land called Charles and Benjamin, containing five hundred acres more or less," both of them stating it to be taken by virtue of a writ of fieri facias at the suit of William Willson, and Anna Maria his wife. And also a paper, which it is admitted was prepared and filed by the sheriff as his return to the fieri facias, and in which the land sold is described as "part of a tract of land called Charles and Benjamin, lying on the north west side of the Baltimore road, containing two hundred and fifty acres more or less." And all of them describing it as the land of Elisha D. Berry. And the defendant produced a corrected return by the sheriff, of the fieri facias, on the return day of the writ. That corrected return is full and special, and sufficiently describes the land sold, and entirely supersedes the paper that was first prepared by the [**12]  sheriff as his return; which paper, if admitted to be imperfect as a return, cannot avail the appellant, as it will not be denied, that a sheriff has a right, in due time, to correct his return to a fieri facias, so as to make it conform to the truth of the fact, whatever that may be, and to give it effect and legal operation; and indeed, it is his duty to do so, not only as respects himself, but all others concerned, and purchasers not less than others, who commit themselves to the accuracy and integrity of sheriffs.
In this case it is not denied, that the correction was in time; nor is it contended, that the return, standing alone, is upon the face of it defective, but it is supposed that there are discrepancies between the return, the inventory and appraisement, and the advertisement of sale, which vitiate the whole proceedings, and render the sale void. With respect to certainty in the description 

 [*344]  of the property, we do not perceive the fatal discrepancies that are supposed to exist. The corrected return describes the land levied upon, as the property of Elisha D. Berry, to be "all that part of the tract of land called Charles and Benjamin, which was devised [**13]  to Elisha D. Berry by his father," with a reference to the will, and states the amount, to which it was appraised, to be $ 6,000, referring also to the schedule or inventory. Between the description then of the land levied upon, as given in the return, and the inventory and appraisement, there is no discrepancy, but the land clearly appears to be identical. In the latter, it is described as part of a tract of land called Charles and Benjamin, the property of Elisha D. Berry, containing five hundred acres more or less, and appraised to $ 6,000. In the former, as all that part of the tract of land called Charles and Benjamin, belonging to Elisha D. Berry, which was devised to him by his father, stating the amount of the appraised value to be the same as that set out in the inventory and appraisement, and showing, by the reference to that paper, (which is made a part of the return,) the quantity of acres to be the same. The only difference being this, that the return professes to show in what manner Berry acquired title, by reference to his father's will, which the inventory does not. But the two papers manifestly show the land devised to Berry by his father,  [**14]  and the land levied on to be the same; and the same may be said of the advertisement of sale, which is of all the right, title, interest and estate, of Elisha D. Berry, of, in and to, part of a tract of land called Charles and Benjamin, containing five hundred acres more or less, taken by virtue of a writ of fieri facias, at the suit of William Willson and wife. This paper does not, to be sure, set out the means by which Berry acquired title, but it describes the land seized under the fieri facias, as the property of Berry, by its name and contents, as it is described in the other two papers. And it is difficult to wink so hard, as not to see, that they all manifestly relate to the same land, and describe it with sufficient certainty. But it is not true, that lands taken in execution, must be described in the schedule and advertisement of sale, with technical minuteness. If it were so, it would perhaps 

 [*345]  be found that there are few titles in the state, acquired by purchase at sheriffs sales, that might not be shaken. The sheriff cannot sell what has not been levied upon, but a general description in the shedule and advertisement of sale is [**15]  sufficient. The return should regularly, for the security of purchasers, describe the premises with precision; but it is enough if the description be such as that the property sold may be clearly identified. In this case, the land sold was a part of the premises levied upon and advertised, and that part is described in the sheriff's return, in a manner by which it may be sufficiently known and ascertained. But it is contended, that the sale was void, because a part only of the premises seized and advertised was sold, on the ground that the sheriff was not legally authorized to sell a part only, but was bound to sell the whole of the land levied upon. We cannot, however, assent to the proposition. Sheriffs, it is believed, are already sufficiently disposed to sell more than is necessary; and it would be pregnant with mischief to the community, if a sheriff, who lays an execution for $ 100, on a tract of land worth $ 10,000, should be held to be obliged to sell the entire tract, and could not sell such part as might be sufficient to discharge the debt. On the contrary, we think, that in such a case the sheriff is not only authorised to lay off and sell such a proportion of the land as [**16]  may be found sufficient to satisfy the debt, but that he ought to do so, and not to sacrifice at auction more than may be found necessary. Or suppose a sheriff having taken in execution an entire tract of land, finds it will sell to a greater advantage if divided and sold in lots, than if sold altogether; and accordingly lays it off into lots, and sells them separately to different persons; would it, in such a case be said, that the sale of each lot would be void, because the sale of neither was a sale of the whole? And yet the doctrine contended for here, if maintained, would lead to that length.
We can perceive nothing wrong in the sale and return in this case, and affirm the judgment.
JUDGMENT AFFIRMED.  

24 of 44 DOCUMENTS 

NEAL'S EX'r. vs. FISHER'S Adm'r.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

2 H. & G. 274; 1828 Md. LEXIS 17 

June, 1828, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court. This was an action of assumpsit for money laid out and expended; for money had and received, and for money lent and advanced, &c. brought on the 19th of February 1823, by the appellant, (the plaintiff in the court below,) against the testator of the appellee, (the defendant in that court.) The defendant pleaded, 1. Non assumpsit. 2. Non assumpsit infra tres annos; and 3. Action on accrevit infra tres annos. The death of the defendant was suggested at September term 1824, and his executor, (the now appellee) appeared and defended the action; and a rule was laid on the plaintiff to reply to the pleas, pleaded in manner aforesaid, and the cause was continued several terms under that rule. At the trial court, (September 1826,) the plaintiff joined in issue to the first plea, and replied generally to the other pleas, on which issues were joined.

At the trial the plaintiff offered in evidence the following note: "Baltimore, October 20th 1813. $ 500. On demand we promise to pay Ann Mary Fisher five hundred dollars, value received, with interest.     Neal, Wills & Cole."

The said note was admitted to be drawn and signed by one of the parties [**2]  thereto; and that Neal, Wills & Cole, were book-sellers and copartners, carrying on business in the city of Baltimore under the style of Neal, Wills and Cole; and that the said Neal, one of the said copartners, was the defendant's testator, against whom the original writ in this cause issued. The plaintiff further offered in evidence the following acknowledgment on the back of the said note, (which was admitted to be in the handwriting of, and signed by Neal, the defendant's testator:) "July 1st, 1818. Paid Mrs. Fisher two hundred dollars, with interest up to this day, leaving a balance due of two hundred dollars on interest till paid.     Abner Neal."

Also that the present plaintiff has obtained letters of administration upon the estate of Ann Mary Fisher, the person mentioned as the payee of the note and of the acknowledgment, who departed this life some years ago; and that the partners dissolved the copartnership in the year 1817. It was admitted that Wills and Cole, two of the said copartners, are yet living. The defendant then prayed the court to instruct the jury, that the promise proved, being a joint one, and the declaration being upon a several assumpsit, that the [**3]  plaintiff was for such variance not entitled to recover. Which direction the Court [Hanson, A.J.] gave to the jury. The plaintiff excepted; and the verdict and judgment being against him, he appealed to this court.  

DISPOSITION:
JUDGMENT REVERSED, AND PROCEDENDO AWARDED.  

HEADNOTES:

In an action of assumpsit where the declaration contained only the money counts, under the general issue, it is no variance, for the plaintiff to give in evidence a promissory note, made payable to him, by a firm, of which the defendant was a partner.  

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

OPINION:

 [*275]  Meredith, and Williams, (District Attorney of U. S.) for the Appellant, contended, 1. That the promise relied on in this case was not a joint but a several promise. 2. That even if the promise was joint, the plaintiff below had a right to recover against one of the promissors, being sued alone, and not having pleaded in abatement. They cited Brown v Warram, 3 H. & J. 572. Barry v Foyles, 26 U.S. 311.
Gill, for the Appellee, abandoned the case.
JUDGMENT REVERSED, AND PROCEDENDO AWARDED.  

25 of 44 DOCUMENTS 

ROGERS, Surviving Executor of YELLOTT, vs. WATERS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

2 G. & J. 64; 1829 Md. LEXIS 7 

December, 1829, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court.

This was an action of Assumpsit, by the appellant, Philip Rogers, as surviving executor of Jeremiah Yellott, against the appellee, Hezekiah Waters, docketed by consent on the 12th of May, 1823.

The declaration contained a count on a promissory note for $ 211 62, dated December 17th, 1804, of which the appellee was the maker, and payable six months after date, to the plaintiff's testator. There were also counts for money had and received, paid, laid out, and expended; and a count on a promise by the defendant, to the plaintiff as executor, in consideration of the said sums of money, due as aforesaid, to the plaintiff's testator.

The defendant pleaded,

1st. Non assumpsit. 2nd. Non assumpsit infra tres annos. 3d. Actio non accrevit infra tres annos. Issue to the first plea; and general replications to the 2nd and 3d pleas, and issues joined.

At the trial, the plaintiff gave in evidence, that the defendant signed and delivered to the plaintiff's testator the following promissory note: "$ 211 62; Baltimore, 17th December, 1804--Six months after date, I promise to pay to Jeremiah Yellott, or order, two hundred and eleven dollars,  [**2]  and sixty-two cents, for value received. Hezekiah Waters." And also gave in evidence that letters testamentary were, in due form of law, granted to the plaintiff and one Samuel Owings, now deceased, and whom the plaintiff hath survived, as executor of said testator; he also offered in evidence the following letter, which was written by the defendant, and delivered to the plaintiff: "Baltimore, October 22d, 1822. Mr. Philip Rogers, Sir: The note in your possession, with my signature, originated in the following manner, viz: On settlement of an account with Capt. Yellott, some time in the month of February, 1804, there appeared a balance due him of about $ 211, being money disbursed and laid out by him in the completion of St. Peter's Church, to close which, it was agreed by the vestry and Capt. Yellott, that some one of the vestry should sign a note for the balance, payable six months after date, and it was finally concluded, that myself, as one of the vestry, should sign that note, and that money arising from the pew rents, should be applied to the payment of the same. Capt. Yellott held this note for more than six months after the time limited for payment, and till the time of his [**3]  decease, without ever demanding payment, or mentioning any thing on the subject, which induced a hope that he intended to make it a present to the church, he being a vestryman during all this time, if I mistake not. Several years after the decease of Capt. Yellott, Mr. Samuel Owings, one of his executors, mentioned to me that he had this same note in his possession. I informed Mr. Owings in what manner it originated, and at the same time told him, that I would press the vestry to raise the money, and to have it taken up. I accordingly several times mentioned the subject to the vestry without effect, there never being money in the treasurer's hands to meet the current expenses of the church, which several gentlemen in the present vestry must well recollect, as they were members of the former vestries for many years, and till the unpleasant revolution which took place in 1815-1816, since which time I have had very little communication with them. I am under the impression that Mr. Wm. Jessop, Mr. Wm. Krebs, and Mr. Francis Hollingsworth were all present at the time of the statement of the account alluded to above, and that Mr. Hollingsworth acted as secretary at the time, and could the [**4]  book in which Capt. Yellott kept the church account be produced, the record made at that time would explain the whole transaction. The aforegoing is a just and true statement of this unpleasant business, therefore cannot suppose that the administrators of the church property would wish to involve me in trouble, as it is most evident that this money was expended on the church, and has never yet been paid. Would you be pleased to see Mr. F. Hollingsworth on the subject; I am confident he must recollect the transaction, and if I am not mistaken, the note in question is in his hand-writing. Hez. Waters." And that the said testator died in the month of February, in the year 1805, and that letters testamentary were granted the said Samuel and Philip, on the first of March of the same year. Whereupon, the defendant moved the Court to instruct the jury, that if they shall believe the evidence so given as aforesaid, that then the said note was given without a sufficient consideration therefor, moving from the said Yellott to the defendant, and therefore does not create a debt or obligation in law upon the defendant, to pay the money in said note mentioned; and also that the said matters so [**5]  offered do not afford sufficient evidence of his admission or acknowledgment of being indebted, or of his promise to pay any existing debt, and therefore is not sufficient to take this demand out of the operation of the Statute of Limitations, pleaded in this cause; of which opinion on the Statute of Limitations the court (Hanson, A. J.) was, and so directed the jury. The plaintiff excepted; and the verdict and judgment being against him, he appealed to this court.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

A promissory note given by a member of the vestry of a church, for a debt due, not by him in his individual character, but by the vestry, a corporate body, of which he was a member, without any consideration moving to himself, is a promise to pay the debt of another, without consideration, and void.

The fact, that a note was payable at a future day, where it appeared that it was made for the purpose of closing an account, for which the maker was not responsible independent of the note, does not furnish the slightest presumption that forbearance was purchased by it; for nothing is more common than the closing of accounts by passing notes payable at future days, without the consideration of forbearance being thought of.

The acknowledgment of a defendant, that the promissory note upon which he was sued as maker, was originally given to close an account, which the payee and plaintiff had against the vestry of a church, of which he, the defendant, was a member; and that the money arising from the pew rents was to have been applied to the payment of the same, but that it never had been paid, is not sufficient to take the case out of the Statute of Limitations. It shews that there never was an existing debt due from the defendant; and that when the note was given, it was not to be paid by him, but out of the money arising from the pew rents, which exempts him from any moral obligation to pay.

Where a plaintiff gives in evidence a letter from the defendant, to avoid the Statute of Limitations, he must take the letter as it is.  

COUNSEL:
H. W. Rogers, for the appellant, contended,

1st. That the appellee had admitted the actual existence of the debt at the date of his letter of acknowledgment, on the 22d of October, 1822; and,

2d. That the acknowledgment is accompanied by no circumstances intended by the defendant as a defence against the payment; and that if intended as a defence, they are not such, as ex aequo et bono ought to release him from the payment of the original debt. Oliver vs. Gray, 1 Harr. and Gill, 216.

S. I. Donaldson for the appellee. The letter of defendant shews there was no consideration for the note, moving from plaintiff to him. No moral obligation on his part, at any time, to pay it. If so, how [**6]  can acknowledgment that it had not been paid, after a lapse of nearly eighteen years, create a liability?

Examine the phraseology of the letter; settlement with Capt. Yellott of balance due him for money "laid out by him in the completion of St. Peter's Church." Was defendant bound to pay this money? Yellott was a vestryman as well as defendant. No more responsibility resting on one, than the other, and no personal liability in either. The note was agreed by the vestry and Capt. Yellott to be signed by one of the vestry, and "it was finally concluded that" defendant, "as one of the vestry, should sign the note, and that money arising from pew rents, should be applied to the payment of the same." It was the mere evidence of debt from vestry to Capt. Yellott, to be paid by funds of vestry. Was the money advanced on credit of defendants? This is not pretended. If considered then as an engagement to pay the debt of another, void for want of consideration in hands of payee of note, a consideration is necessary to its validity. Wyman vs. Gray, 7 Harris and Johnson, 409, and Elliot vs. Giese, Ib. 457.

What was the inference of defendant, from Capt. Yellott's not demanding payment [**7]  of note when due, and not demanding it as long as he lived? Not that he, the defendant, was to derive any benefit, but that Yellott intended to make it a present to the church, clearly shewing that defendant never regarded it as a debt which he was bound to pay: Yellott never intended it so, and his acts show it. The conversation between defendant and Samuel Owings, one of the executors, confirms it, as no attempt was then made to recover it from defendant, nor during Mr. Owing's life, and the embarrassed state of the pecuniary concerns of the church, shew the reason of the non payment of the debt due from the vestry. If defendant's declarations are relied on by plaintiff, to take a case out of the Act of Limitations, he must take them altogether, and cannot disprove them by other evidence. Oliver vs. Gray, 1 Harr. and Gill, 204.

An acknowledgment of a debt, which will take a case out of the statute, must be unqualified and unconditional. Wetzell vs. Busserd, 11 Wheat. 309. Clementson vs. Williams, 8 Cranch, 72, and unaccompanied with a protestation against the payment of it. Johnson vs. Burdslee, 15 Johns. Rep. 3, and no promise to be inferred from declaration of defendant, that [**8]  he was not holden to pay. Lawrence vs. Hopkins, 13 Johns. Rep. 288. Acknowledgments must be of a present subsisting debt, unaccompanied by any qualification or declaration, which, if true, would exempt defendant from moral obligation to pay. Oliver vs. Gray, 1 Harr. and Gill, 204. Bell vs. Morrison, 1 Pet. Sup. Ct. Rep. 360, 362, 364, 365, 366. In this case defendant's letter does shew that he never was liable to the payment of this debt, that he was exempt from moral obligation to pay; the debt was due by the vestry of St. Peter's, not by defendant. There must be more than an admission that the debt is unpaid. There must be admission, or proof, that debt ever existed. Leeper vs. Tatton, 16 East. 421. Lord Ellenborough's Opinion on Trial at Nisi Prius. Here the evidence shews that debt never existed. There can be no ground for reversing the judgment. If viewed as an engagement to pay the debt of another, it is within the principle laid down in Wain vs. Warlters, 5 East. 10; no consideration appearing on the instrument itself. This principle was adopted by Court of Appeals, in Wyman vs. Gray, 7 Harris and Johnson, 409. In latter case, it was a promissory note, as in this. Yet it being [**9]  for a debt due by the Patapsco Manufacturing Company, with a right to examine into original consideration, party was held not liable, though maker of note.  

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

OPINIONBY:
BUCHANAN 

OPINION:

 [*70]  BUCHANAN, Ch. J. delivered the opinion of the Court.
This case appears, under former decisions of this Court, to be clear of difficulty.
It is an action of Assumpsit, brought upon a promissory note given by the defendant to Jeremiah Yellott, the appellant's testator, on the 17th of December, 1804, and payable six months after date, more than twenty years before the bringing of the suit. The issues are upon the pleas of non assumpsit, non assumpsit infra tres annos, and actio non accrevit infra tres annos.
To support the issues on his part, and to take the case out of the operation of the Act of Limitations, the appellant produced and read to the jury, a letter addressed to him on the 22d of October, 1822, by the defendant, in which he admits that the money for which the note was passed has not been paid, but alleges, that under an arrangement between Jeremiah Yellott, and the  [**10]  Vestry of St. Peter's Church, to which body both he and Yellott belonged, it was given in order to close the account for a balance due to Yellott, on account of money laid out by him in the completion of the church, to be discharged by the application to that purpose, of money arising from the pew rents.
In the case of Wyman vs. Gray, 7 H. & J. 409, decided by this Court, it was determined, that a note given by an individual corporator, for a debt due by the corporation, and not by him in his individual capacity, and without any new or superadded consideration moving to himself, was a promise to pay the debt of another, and void, there being no sufficient consideration to support it.
Here the letter of the defendant is the evidence produced and relied on, by the appellant himself, and that letter 

 [*71]  proves, that the note, which is the subject of the suit, was given for a debt due, not by him in his individual character, but by the Vestry of St. Peter's Church, a corporate body, of which he was a member, but without any consideration moving to himself. It is therefore a promise to pay the debt of another, without consideration, and nudum pactum [**11]  and void. And the question presented by the bill of exception, is, whether the letter of the defendant had the effect to take the case out of the operation of the Act of Limitations?
In Oliver vs. Gray, decided by this Court at the June Term, 1827, it was held, that an acknowledgment to take a case out of the Act of Limitations, 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; and that 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. In this case, the defendant does, in his letter, acknowledge that the sum claimed has not been paid, but at the same time he insists, that the note was not given for a debt due by himself, but by the Vestry of St. Peter's Church, under an agreement between the vestry and Yellott, that it should be signed by him to close the account, but to be paid out of money arising from the pew rents. There was no consideration moving to the defendant, nor any antecedent debt due by him individually; no consideration of forbearance expressed [**12]  in the note, as the consideration upon which it was given, as has been supposed. Nor is there any evidence of such a consideration, de hors the note. It is, to be sure, made payable six months after date, but it was given (according to the appellant's own proof, as contained in the defendant's letter, which, as he has introduced it, he must take it as it is) for the purpose of closing account, on the settlement of which that amount was found to be due to him from the vestry of St. Peter's Church, which by no means proves, or furnishes the slightest presumption, 

 [*72]  that the forbearance of Yellott to sue the vestry, was purchased by the giving of that note; on the contrary, if we were to deal in conjecture, it would rather seem, that the favor, if any, was a favor to him, in thus closing an account open upon the books. And perhaps nothing is more common than the closing accounts by passing notes, payable at future days, without the consideration or forbearance being thought of. To suppose that it was given for the consideration of forbearance, looking to the note itself, would be to give to it a construction unauthorized by any thing appearing upon the face of it,  [**13]  and to offer violence to the evidence, which asserts that it was given for the purpose only of closing an open account, and being the acknowledgment of the party offered by the appellant to take the case out of the Act of Limitations, and the only evidence in the cause, except the note itself, he must be content to take it altogether, as it stands, and cannot garble it, and select such parts as will suit his purposes, and reject the residue; otherwise it would be to take the case out of the Act of Limitations by other proof than the acknowledgment of the defendant, and that cannot be: which would be the effect of the remote inference, that the note was given for the consideration of forbearance, drawn from the mere circumstance that it is made payable at a future day, in opposition to the allegation that the object of it was to close the account between Yellott and the vestry, and that it was to be paid out of money arising from the pew rents; which shows that the payment of it by him individually, was not contemplated by any of the parties.
That part of the letter relied upon, is in these words: "On settlement of an account with Capt. Yellott, some time in the month of February,  [**14]  1804, there appeared a balance due him of about $ 211, being money disbursed and laid out by him in the completion of St. Peter's Church, to close which, it was agreed by the vestry and Capt. Yellott, that some one of the vestry should sign a note for the balance, payable six months after date; and it was finally 

 [*73]  concluded, that myself, as one of the vestry, should sign that note, and that money arising from the pew rents, should be applied to the payment of the same."
The note then, being a promise, or agreement to pay the debt of another, and void for want of a sufficient consideration moving to the defendant, there never was an existing debt due by him; and his acknowledgment that the sum claimed has not been paid, is not an admission of any present subsisting debt. And the understanding at the time the note was given, that it was not to be paid by him, but out of money arising from the pew rents, exempts him from any moral obligation to pay it. I think, therefore, that the acknowledgment of the defendant, was not sufficient to take the case out of the Act of Limitations, and that the direction given to the jury was right.
JUDGMENT AFFIRMED.  

26 of 44 DOCUMENTS 

LAMMOTT vs GIST.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

2 H. & G. 433; 1828 Md. LEXIS 39 

June, 1828, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court. The appellee, (the plaintiff in the court below,) brought an action of replevin against the appellant, (the defendant in that court,) to replevy a negro boy named Isaac, and sundry other personal property, which were replevied and delivered to the plaintiff. The defendant being summoned appeared, and by his avowry stated, 1. That, as the bailiff of Henry Shade, he acknowledged the taking the said goods, &c. because the plaintiff for one year, &c. held and enjoyed the premises as tenant to the said Shade, by virtue of a demise thereof, at and under the yearly rent of $ 50, payable, &c. and because $ 50 of the said rent, due and payable by the plaintiff to Shade for one year, &c. ending, &c. was in arrear, &c. the defendant, as the bailiff of Shade, well acknowledged the taking the said goods, &c. 2. There was a similar avowry by the defendant, as bailiff of Jehu Hughes. The plaintiff pleaded to the avowries, 1. That neither of the said sums of money, of the said rents, at, &c. was in arrear to the said Shade and Hughes, or to either of them, &c. Issue tendered and joined. 2. That before the issuing the original writ, to wit, on the 3d of October [**2]  1823, it was agreed between the plaintiff and defendant, that the plaintiff should deliver up the possession of the farm upon which he resided, and relinquish the residue of his term; that the same should be received in full satisfaction of all rent then in arrear, or thereafter to become due. Which said farm was then and there delivered to the defendant, and he put in possession thereof, and the residue of the plaintiff's term therein relinquished in full satisfaction and discharge of the rent, &c. and which said possession and relinquishment, the defendant then and there accepted and received of and from the plaintiff, in full satisfaction, &c. Issue tendered and joined.

1. The defendant, at the trial, proved that the rent claimed was due on the 1st of March 1823. The plaintiff then offered to prove by parol, that in September 1823, Shade, the landlord, agreed to sell and deliver possession of the property leased, to Jehu Hughes, and requested the plaintiff to give up the possession to Hughes, who agreed to deliver up the same in October, provided Shade would give up the rent in arrear, to which Shade assented. That the plaintiff remaining in possession of the said property [**3]  on the 29th of September, the defendant, as bailiff of Shade, levied the distress for rent due on the 1st of March 1823; and that afterwards, in the month of October, the plaintiff left the property demised, and delivered possession thereof to Hughes. To which testimony the avowant objected; but the Court, [Archer, Ch. J. and Hanson, A. J.] overruled the objection, and allowed the same to go to the jury. The avowant excepted.

2. The avowant then prayed the court to instruct the jury, that he was entitled to recover. Which instruction the court refused to give The avowant excepted. Verdict upon the first issue--"that the said sums of money of the rents aforesaid, at the same time, when, &c. were not, nor was either of them, in arrear and unpaid to the said Shade and Hughes, or to either of them, nor was any part thereof," &c. Verdict on the second issue--"that before the impetration to the writ original, the plaintiff had delivered to the defendant, and the defendant had then and there accepted of and from the plaintiff, the said farm, and the residue of the plaintiff's term therein, in full satisfaction and discharge of the rent so in arrear, or to become due," &c. Damages assessed [**4]  to one cent. Judgment entered for the plaintiff, that he hold the goods, &c. and also for the damages laid in the declaration, and costs; to be released on payment of one cent, and costs. From this judgment the defendant appealed to this court.  

DISPOSITION:
JUDGMENT REVERSED, AND PROCEDENDO AWARDED.  

HEADNOTES:

A parol agreement between a landlord and his tenant, that the latter should surrender the residue of his term in the premises leased, to a purchaser, in consideration of which, the landlord agreed to give up the rent in arrear, is void as being within the statute of frauds, and inadmissible in evidence on an issue joined in an action of replevin between such tenant and the bailiff of the landlord, in which the arrears of rent were claimed.  

COUNSEL:
Kennedy, for the Appellant, contended, 1. That the second plea of the plaintiff below is defective in this, that it does not aver that the avowant had authority to make the agreement which is there pleaded, in satisfaction of the rent due on the premises demised.

2. That the court below erred in permitting the evidence, as stated in the first bill of exceptions, to go to the jury--1st. Because the said evidence does not sustain or agree with the averments in the plaintiff's plea. 2d. Because the said evidence, as there stated, does not prove that the rent was extinguished at the time of the distress therein mentioned.

3. That the agreement as set forth in the first bill of exceptions, did not amount to a satisfaction of the rent, or take away the right to distrain for the same.

4. That the agreement set forth in the first bill of exceptions, was one relating to lands, within the [**5]  statute of frauds, and ought not to be proved by parol evidence alone.

5. That there is error in the verdict, inasmuch as it finds that "the plaintiff had delivered to the defendant, and the defendant had accepted of and from the plaintiff, the said farm, and the residue of the plaintiff's term therein, in full satisfaction," &c. which fact was not put in issue by the pleadings in the cause; and that the said verdict is also immaterial, inasmuch as it does not find that satisfaction for the rent was made to the lessor of the land.

On the first point, he cited Bradley on Distresses, 217. Bird, Savage & others, v Caritat, 2 Johns. Rep. 342. 2 Chitty's Plead. 508, (note c.) 1 Chitty's Plead. 227. 6 Com. Dig. tit. Pleader, (C.) 2 Stark. Evid. 60. Rawlinson v Shaw, 3 T. R. 557. Doe v Wandlass, 7 T. R. 113.

On the second point, he cited Abitbol v Bristow, 6 Taunt. 464, (1 Serg. & Lowb 454.) 3 Serg. & Rawle, 564. Philips v Rose, 8 Johns. Rep. 392.

On the third point, he cited Chipman v Martin, 13 Johns. Rep. 240. Drake v Mitchell, 3 East, 251. 1 Com. Dig. (new ed.) tit. Accord, 201.

Meredith, on the same side, cited 2 Stark. Evid. 589. Botting v Martin, 1 Campb. 317.  [**6]  Thomson v Wilson, 2 Stark. Rep. 379, (3 Serg. & Lowb. 391.) Mollet v Brayne, 2 Campb. 103.

No Counsel argued for the Appellee.  

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

OPINIONBY:
MARTIN 

OPINION:

 [*436]  MARTIN, J. delivered the opinion of the Court. We think Baltimore county court erred in receiving parol evidence for the purpose it was offered, as stated in the first bill of exceptions. Gist held the property leased, under Shade, and that tenancy could not be determined by a parol license to quit the premises. The agreement was, that the lease should be surrendered, and the rent discharged, and is embraced within the statute of frauds, which provides, that no lease or term of years, or any uncertain interest, of or in any messuages, lands, tenements or hereditaments, shall be surrendered, unless by deed, or note in writing, or by act or operation of law. The release of the rent, and the surrender of the property, form one agreement--they cannot be separated; and to make the agreement available, it ought to have been in writing.  Botting v Martin, 1 Camp. 317. Mollet v Brayne, 2 Camp. 103. [**7]  Thomson v Wilson, 3 Serg. & Lowb. 391.
In the second bill of exceptions, there was a prayer by the avowant, that the court would instruct the jury, he was entitled to recover. If the parol evidence received by the court, as stated in the first bill of exceptions, had been legal, this prayer might have been important, and then it would have been proper to consider the objections relied on in the argument, one of which was, a variance between the agreement offered in evidence, and that set out in the pleadings. But as this court has decided, the parol evidence of the agreement, stated in the first bill of exceptions, ought not to have been received by the court, that evidence must be rejected; and being rejected, the cause stood only on the pleadings and the evidence offered by the avowant. The pleadings do not controvert that Lammott was the bailiff of Shade, and it was proved by testimony the rent was due.
We dissent from the opinions expressed by Baltimore county court, as stated in both bills of exceptions.
JUDGMENT REVERSED, AND PROCEDENDO AWARDED.  

27 of 44 DOCUMENTS 

ALDRIDGE & HIGDON vs. TURNER.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

1 G. & J. 427; 1829 Md. LEXIS 31 

December, 1829, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Saint Mary's County Court. This was an action of assumpsit, brought on the 19th of February, 1825. There was but one count in the declaration, which stated "That whereas one Charles C. Egerton, jun. before the making of the promise and undertaking herein after mentioned, to wit, on the 21st day of April, in the year 1820, at the town of Baltimore, in Baltimore county in the State of Maryland, to wit, at the county aforesaid, made and signed his certain note in writing, commonly called a promissory note, bearing date the day and year aforesaid; and thereby six months after date of the said note, promised to pay to the said Andrew Aldridge and Benjamin D. Higdon, by the name of Aldridge and Higdon, or order, for $ 695 40 for value received, by him the said Charles C. Egerton, jun. and then and there delivered the said note to the said Benjamin D. and Andrew, whereby, and by reason of which said promise, and by force of the statute in such case made and provided, the said Charles C. Egerton, jun. became liable to pay to the said Andrew and Benjamin D., the said sum of money mentioned in the said note, according to the tenor and effect of the said note, and thereupon afterwards,  [**2]  to wit, at the county aforesaid, in consideration of the premises and to secure the payment of the said sum of money, in the said note mentioned, to the said Andrew and Benjamin D., he, the "said Josiah Turner, upon himself assumed, and to the said Andrew and Benjamin D., then and there promised to guarantee the payment of the sum of money mentioned in the note herein before stated; by signing with his own proper hand writing on the back of the said note, the following obligation: 'I hereby guarantee the ultimate payment of the within note. Josiah Turner.' And the said Andrew and Benjamin D. aver, that the said Charles C. Egerton, jun. hath not paid to them the said sum of money, in the said note mentioned, or any part thereof, at any time whatever, but therein hath wholly failed and made default, and is not able to pay; of all which said premises, the said Josiah Turner afterwards had notice at the county aforesaid, and by reason whereof, and according to the said guarantee and undertaking of the said Josiah, in form aforesaid made, he, the said Josiah, became liable to pay to them, the said Andrew and Benjamin D., the said sum of money, in the said note mentioned, when he should [**3]  be thereunto requested, and being so liable, he, the said Josiah, in consideration thereof," &c.

The defendant pleaded non assumpsit and non assumpsit infra tres annos. General replication to the last plea, and issues joined.

At the trial of this cause, the plaintiff gave in evidence to the jury, the note of Charles C. Egerton, jun. to the plaintiffs', and the defendants' assumption thereon, as follows. "Baltimore, April 21st, 1820. $ 685 40. Six months after date, I promise to pay to Aldridge & Higdon, or order, six hundred and eighty-five dollars and forty cents, for value received.--Charles C. Egerton, jun." On the back of the foregoing note were the following endorsements, to wit: "I hereby guarantee the ultimate payment of the within note. Josiah Turner." "1821, November 7. Received J. Turner & Co's note, at sixty days, for $ 106 50." And proved the signatures of said Egerton and Josiah Turner thereon; they also gave in evidence, the judgment of Aldridge and Higdon against Charles C. Egerton, jun., obtained in March, 1824, on this note, and the proceedings thereon, two writs of fieri facias, returned nulla bona.

The plaintiffs also read in evidence, a conveyance [**4]  from Charles C. Egerton, jun. to Josiah Turner and Edward Maddox, dated the 6th of February, 1824, reciting that the said Egerton was indebted to Josiah and Philip Turner, on two notes dated, &c., and that they had become security for said Egerton, in certain enumerated notes, "and in divers other cases, not at this time to be accurately enumerated and set forth; also, that the said Maddox had become security for the said Egerton &c. whereby, in consideration of the premises, and of the sum of five dollars," the said Egerton conveyed to the said Turner and Maddox, sundry negro slaves, goods and chattels, &c. in trust for the said Turner and Maddox, to sell and dispose of the said negroes, goods and chattels, &c. and apply the proceeds to the discharge of the debts due as before mentioned, and to indemnify them against suretyships, &c. the said conveyance was duly acknowledged and recorded according to law. Whereupon, the defendant prayed the court to instruct the jury, that the plaintiffs were not entitled to recover; because no liability attached to the defendant in this cause, by the assumption endorsed on the aforesaid note, there being no consideration mentioned in said assumption;  [**5]  which instruction the court gave. The plaintiffs excepted; and the verdict and judgment being against them, they appealed to this court.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

The endorsement of T, on the promissory note of E payable to A, as follows: "I hereby guarantee the ultimate payment of the within note," is void for want of consideration; and under the plea of non assumpsit to a declaration founded upon that guaranty, the objection to the want of consideration may be taken.  

COUNSEL:
Stonestreet for the appellants, contended that the defect in the plaintiffs cause of action should have been taken advantage of by demurrer.

A. C. Magruder, for the appellee.  

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

OPINIONBY:
BUCHANAN 

OPINION:

 [*430]  BUCHANAN, Ch. J. delivered the opinion of the Court.
We do not perceive any error in the opinion of the court below, and the instruction given at the trial to the jury, that the plaintiffs were not entitled to recover.
The guaranty by Turner, written upon the back of the promissory note, given by Egerton to the plaintiffs, of the ultimate payment of the amount, appearing to be wholly without consideration, was clearly nudum pactum and void; and the plea of non assumpsit which was filed by the defendant to the declaration founded upon that guaranty, properly let in the objection of the want of consideration.
JUDGMENT AFFIRMED.  

28 of 44 DOCUMENTS 

STRIKE vs. M'DONALD & SON.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

2 H. & G. 191; 1828 Md. LEXIS 14 

June, 1827, Argued 

June, 1828, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from the Court of Chancery. The bill in this case was filed on the 25th of February 1817, in Baltimore county court, by the appellees, (the complainants in that court,) against the appellant and John Rogers, (the defendants therein;) and afterwards, under the act of 1824, ch. 196, the proceedings were, at the instance of the complainants, transmitted to the court of chancery, on the 15th of June 1825. The bill stated, that some time previous to the year 1811, John Rogers, stone mason in the city of Baltimore, entered into partnership with Robert Henderson, merchant of the said place, for the purpose of carrying on the flour and milling business, under the title of Henderson & Rogers. That Henderson and Rogers in carrying on their said business contracted considerable debts, among which was one contracted with the complainants in the purchase of wheat, which then amounted to about $ 6,000. That Henderson & Rogers becoming embarrassed in their affairs, Rogers, for the purpose of preventing his private property from being made responsible for the debts of the said firm, on or about the 16th of January 1811, assigned to Nicholas Strike, of the said city, two certain lots or parcels [**2]  of ground situate in Pratt-street in the said city, with their appurtenances, for the term of ninety-nine years; which assignments were exhibited marked No. 1, and 2. That the complainants have every reason to believe that there was no bona fide sale of the said lots by Rogers to Strike; that no consideration passed between the said parties as for a sale of property; that if Strike paid Rogers any money, it was subsequently and by way of loan on the security of the said deeds; and that the said assignments were understood by the parties expressly to be made to avoid the payment of the creditors of Rogers, or of Henderson & Rogers. That as an evidence that the said deeds executed by Rogers to Strike were not intended to be absolute, but only intended to secure the same against the creditors of Rogers; and that the monies paid by Strike to Rogers were paid only upon the security of the deeds, which had been previously executed. That a considerable part of the said money was expended by Strike upon the said property contained in the deed marked No. 2, as an exhibit, after the execution thereof, and charged Rogers as part of the purchase money; and that another portion of said pretended [**3]  purchase money was expended by Rogers in erecting a furnace and other permanent buildings on the property contained in the deed made marked No. 1, as an exhibit. That Rogers, notwithstanding the said deeds, for two years after the dates thereof continued to receive the rents thereof, and also to pay the taxes thereon, and the ground rent which was due on the same. That Strike, not considering the deeds absolute, has often promised Rogers, to reconvey the same on the repayment of the amount paid by him on account of the execution of the said conveyances. That part of the alleged purchase money for said lots and houses was a sum of money paid by Strike to Col. Jacob Small, long after the execution of the said deeds; and even after Rogers' application for the act of insolvency, which was in October 1812, when Strike was appointed trustee for his creditors. That Strike, long after the date of said deeds, which is on the same day and year, drew up his account against Rogers, showing the manner in which he had expended, and Rogers received to the amount of the said nominal consideration in the said deeds mentioned, which the complainants pray Strike may be compelled to produce, by which [**4]  the said mode of payment by Strike for said lots will satisfactorily appear as above stated. That Rogers, about October 1812, in consequence of his pecuniary difficulties, applied to Baltimore county court for the benefit of the acts of insolvency of this state; on which occasion the said parties procured Strike to be named by the said court trustee of the effects of Rogers, for the purpose of better concealing the above mentioned fraudulent assignments of said property by Rogers to Strike. The relief sought by the bill was, that the deeds from Rogers to Strike might be declared null and void; that the property be sold for the benefit of the creditors of Rogers, and of Henderson and Rogers; and that Strike should account for the rents and profits. The bill, after stating certain interrogatories to be answered, also prayed for general relief.

The Exhibit No. 1, is a deed from John Rogers to Nicholas Strike, dated the 16th of January 1811, whereby, in consideration of $ 500, Rogers conveyed to Strike, and his heirs, executors, &c. all and singular that piece or parcel of ground, situate, lying and being, in Baltimore county aforesaid, and near the said city of Baltimore, which is [**5]  contained within the following metes and bounds, courses and distances, to wit: Beginning for the same, at, &c. "To have and to hold all and singular the said before described piece or parcel of ground, buildings, improvements and premises, hereby assigned, transferred and set over, or meant or intended so to be, with the rights and appurtenances thereunto belonging, to the use of the said Nicholas Strike, his heirs, executors, administrators or assigns, from henceforth, for and during all the rest, residue and remainder, of the original term therein of ninety-nine years, which is yet to come and unexpired, and fully to be complete and ended, with the said benefits of renewals of the original lease and term from time to time forever; and of purchasing the same in fee simple, or otherwise, as herein before is mentioned, in as full, large, ample, and beneficial a manner, to all intents and purposes whatever, as the same could have been had, held and enjoyed, by the said John Rogers, his heirs, executors, administrators, or assigns, in anywise, under and subject, nevertheless, to the payment of the yearly rent or rents, as the case may be, and to a proportion of the fines for renewals,  [**6]  covenants and conditions, in and by the original indenture of lease thereof mentioned and expressed, and for and in respect of the said hereby assigned piece or parcel of ground and premises, to be paid, observed, performed and kept," &c. There was also a covenant for further assurances, and that Rogers had done no act to incumber the premises.

The Exhibit, No. 2, was a deed from John Rogers to Nicholas Strike, dated the 16th of January 1811, reciting an indenture of lease from Nicholas Rogers to Hiram Cochran, of the 19th of December 1796, for the term of ninety-nine years, renewable forever, of all that lot or parcel of ground, situate, lying and being, on Pratt-street, in Baltimore-Town, (now the city of Baltimore,) which is contained within the following metes and bounds, to wit: Beginning, &c. subject to the payment of the yearly rent of £  12 10. That Cochran had assigned the premises to Robert Henderson, who had assigned the same to John Rogers, &c. That in consideration of the sum of $ 1900, Rogers granted and transferred to Strike the above described premises, "To have and to hold the same, and every part and parcel thereof, unto the said Nicholas Strike, his heirs, executors,  [**7]  administrators and assigns, for and during the rest, residue and remainder, of the term of years therein yet to come and unexpired, by virtue of the original lease thereof, with the benefit of renewal thereof, from time to time forever, in as full, large, ample, and beneficial manner, to all intents and purposes whatsoever, as the said John Rogers might or could have held and enjoyed the same by any ways or means whatsoever, subject nevertheless to the payment of the yearly rent or sum of twelve pounds ten shillings current money, and performance of the covenants in the said recited indenture contained." There was also a covenant that Rogers had done no act to incumber the premises, and also for further assurances.

The answer of Strike stated, that he does not know at what time the said John Rogers, and Robert Henderson, entered into copartnership, nor how long said copartnership continued. That he hath no knowledge of any contract made between the complainants, and Henderson and Rogers, nor what sum of money was due, or is now due, by the said Henderson and Rogers, to the complainants, or if any money is due by them to the complainants. He stated, that on the 16th of January [**8]  1811, Rogers, by his two several deeds of assignment of that date, did bargain, sell and assign, to this defendant, the two several lots and parcels of ground, therein particularly described, for the consideration money therein mentioned, which said deeds were duly executed, acknowledged and recorded, according to law, as by the said original deeds therewith filed, will more at large appear. That the said sale of the said two lots mentioned in the said deeds, was a bona fide sale, and that the full consideration money set forth in the said deed, to John Rogers. That John Rogers and Robert Henderson, nor either of them, were not indebted to him previous to the execution of said deeds, and that the said deeds, or either of them, were not executed to him, to cover any loans of monies due by Rogers and Henderson, or either of them, to this defendant; and that the said deeds, and the lots of ground thereby conveyed, were not executed to this defendant in trust, or by way of mortgage or security, or to evade the claims of the creditors of Henderson and Rogers, or the creditors of either of them; but this defendant saith, that he purchased the said lots of ground as aforesaid, absolutely [**9]  for his own use, and paid for the same out of his own monies. That after he had purchased said lots of ground, and had obtained a conveyance for them, he improved one of the said lots, by erecting additional buildings thereon, which said improvements, were erected at his own charges; and he never did charge Rogers with the expenditure of the said buildings and improvements. That after he had obtained the said deeds, and possession of the said lots, he leased one of them for a term of years, and that the tenants did erect a furnace on one of the said lots, and that Rogers did not erect the said furnace, and it is no advantage to him, inasmuch as the tenants have a right to remove the said furnace, at the expiration of the said term. That Rogers, after the said purchase, never did receive the rents of the said property, with the consent of this defendant, nor pay taxes and ground rents, due on the said lots. He denies that he ever promised Rogers to reconvey the said property to him, upon his repaying the amount of the purchase money paid by this defendant for the same. That he never paid to Colonel Jacob Small, any monies for part of the purchase money of the said lots; but he paid [**10]  the whole purchase money to Rogers. That he did make an estimate or account of sundry sums of money, showing what the said lots of ground stood him in, and he showed to Henry W. Rogers, Esq. counsel for the complainants, who called on this defendant, to inquire how this defendant held the said property, a rough paper containing such estimate of what said property and improvements cost him, but this defendant alleges, that he took no particular care of the said paper, and now cannot lay his hands upon it. That Rogers did obtain the benefit of the insolvent laws of this state; and that this defendant was appointed his trustee, for the benefit of Rogers' creditors. That he, as trustee, never did receive any property of any description belonging to the estate of Rogers. He refers to the insolvent proceedings filed by said Rogers in this court, which will show the amount of property delivered in the schedule of Rogers for the benefit of his creditors. That Rogers did remain in one of said houses, on one of said lots, for sometime after this defendant had purchased the same, as the tenant of this defendant; and he, Rogers, failing to pay the rent thereof, this defendant levied a distress [**11]  for such rent in arrear, and sold the goods of Rogers, for said rent in arrear, and was paid the same by the officer who executed the said distress. He denies all fraud and combination as set forth in the bill of complaint.

The answer of Rogers stated, that he entered into partnership with Robert Henderson about the year 1807 or 1808, and that they carried on the flour and mill business until the year 1811, when they failed in consequence of the failure of certain mercantile houses which were largely indebted to them. That he had been a stone mason by trade, and at the time of entering into partnership was possessed of the two lots mentioned in the deeds mentioned in complainants' bill, and of nearly ten thousand dollars in cash, which were carried into the partnership funds. That at the time of entering into this partnership he supposed Henderson to be in flourishing circumstances, and clear of debt, but afterwards found that he was much incumbered with heavy debts contracted before the partnership was formed. That a few days after the failure of Henderson & Rogers, this defendant executed to Nicholas Strike the deeds No. 1 and No. 2, exhibited by the complainants, in order to [**12]  secure the property therein contained for the benefit of the creditors of Henderson & Rogers, and of this defendant's own creditors, &c. in order to save the same from the creditors of Henderson before the partnership, and upon a special confidence and trust for these purposes, as well as to preserve the surplus, after payment of these debts, for this defendant and his family. That this was the understanding and agreement between this defendant and Strike, who did not pay, or agree to pay, any part of the money which was the nominal consideration of said deeds. That the said conveyances were not intended, or in any manner designed by the parties thereto, to operate as a sale of the property, or to become such in any event, but only as a conveyance in trust for the purposes above mentioned. That this defendant, after the failure of the house, returned to his trade, giving up all concern or attention to the winding up of the affairs of the partnership, believing that these effects and his own would probably be sufficient for the payment of the debts; but being afterwards sued and pressed by the creditors, he was obliged in 1812 to apply for the benefit of the insolvent laws, when he [**13]  obtained a release of his person, and Strike was appointed trustee for the benefit of his creditors, as being already in possession of the principal part of defendant's property. That defendant has not since prosecuted his application, in order to obtain a final discharge, being willing and desirous that all his just debts should be paid, and believing that the property was sufficient for the purpose; that in fact, the creditors are now all satisfied, as this defendant believes, except the complainants and John Okely, to whom a small balance is still due, and that the complainants received but a small payment on their debt, which amounts, as this defendant believes, to nearly $ 6000. That at the time when the deeds were made to Strike, the property conveyed by them was worth much more than the sum expressed as the consideration money in them, and that the complainants then offered to take them at the price of $ 4000; but that at present they are worth, as defendant believes, more than twice that sum. That at the time of executing the said deeds, the improvements on the lot, conveyed by deed, marked as complainants' exhibit No. 2, consisted of a good dwelling-house, in which this defendant [**14]  resided, and in which he continued to reside about eighteen months after the date of said conveyance, without any contract, agreement or understanding with Strike, or any demand or suggestion of paying rent for the occupation of the premises. That the improvements on the other lot, exhibit No. 1, consisted at the time of said conveyances, of two small frame dwelling-houses, occupied by tenants, and a cooper's shop, which was then unoccupied. That this defendant continued to receive the rents from the tenants of said two houses, for his own use, for more than eighteen months after the date of said conveyances to Strike, without any hindrance, demand or molestation from Strike; and that he, this defendant, constantly paid the ground rents, taxes, and all other dues incident to ownership on lot No. 2, during the time of his residence in the house thereon, and on No. 1, for a long space of time afterwards. That during this period, being desirous to engage in a more profitable employment, he borrowed of Strike, from time to time, about $ 1700, which he laid out in erecting a furnace on lot No. 1, which he carried on about two years and an half, in conjunction with Henry M'Ardle and Patrick [**15]  Coulson, to whom Strike granted a lease for ten years, at the rent of $ 80, which was only the amount of the ground rent payable on said lot, on which, besides, were the houses above mentioned; the one renting for $ 60, and the other for $ 48, per annum, which rents were received by this defendant. That about the time when the defendant was engaged in erecting said furnace, he was persuaded by Strike to give up the house on lot No. 2 to him, in order to remove into one more conveniently situated for his business in the furnace, being assured by him that the rent which he should receive from Strike would be sufficient to pay the rent of the house which he might take; that he accordingly surrendered his house to Strike, who has ever since resided in it, and removed into one higher up the street; that before he left his house, being then very much embarrassed in his affairs, he was persuaded by Strike, in order to save his household goods from executions by creditors, to consent to a colourable distress for rent upon his effects, which was accordingly made, and a fictitious sale of his goods had, under a warrant of distress, Strike advancing the money to a mutual friend, one Patrick Coulson,  [**16]  to purchase them in for the use of this defendant, and Coulson handing back the money to Strike after the apparent sale had taken place, while the goods remained all the time in the undisturbed possession of this defendant, who sold and disposed of them afterwards, at his pleasure, without any demand or claim by either Coulson or Strike against this defendant, or each other, on account of the transaction. That after Strike took possession of the house, he made various repairs and improvements on it, and about eighteen or nineteen months afterwards, he rendered an account to this defendant, charging him with the expenses of the same, amounting to about $ 500, and also with the money loaned to him for the building of the furnace, as well as certain other small sums, which he had from time to time lent to this defendant, amounting in the whole, as nearly as he can recollect, to about $ 3000; and then assured this defendant, as he had often done on other occasions, that on payment of the sums charged in this account, he would reconvey the whole property to him. That this account, which he prays Strike may be compelled to produce, was made out in the handwriting of Strike, but without date;  [**17]  and that defendant signed it, and returned it to Strike. That this defendant afterwards, although the money expended on the house by Strike was entirely unauthorized by him, got the money, and tendered the amount of the account to Strike, urging him to reconvey the property to him, and that Strike turned away without receiving the money, or making any answer, and has ever since refused to reconvey the property to this defendant, although he has been informed, that he has admitted to others that he held the same in trust for this defendant and his family, and was willing to convey it to them on payment of the sum due to him from this defendant. This defendant further states, that at the time when he executed those deeds, neither he, nor the house of Henderson & Rogers, owed any thing to Strike; and that the said conveyances were not made in contemplation of future advances of money from Strike, although he afterwards received advances from him; but that the said conveyances were entirely voluntary, and without consideration, and for the uses and trusts above mentioned; and in order that the same may be applied to the payment of his just debts, and those of the firm, contracted after [**18]  he entered the house, he consents that the said property be sold, and the proceeds applied under the direction of this court, to the payment of his just debts, reserving the surplus to this defendant and his family, and submitting to such decree as the court may make in the premises. The general replication was entered, and directions given for issuing commissions to take testimony, and such commissions accordingly issued. On motion of the complainants' counsel leave was given to examine John Rogers, one of the defendants, saving all exceptions. The testimony taken was very voluminous; and related to the consideration in the deeds from Rogers to Strike; the declarations of Rogers, and of Strike; the value of the property; the amount of the rents and profits, and the manner in which the distress of Rogers's property for rent was conducted, &c.

John Rogers, (one of the defendants, but whose examination as a witness was excepted to by the defendant Strike,) deposed, that he was a partner in the house of Henderson & Rogers at the time of their failure in 1811. That he executed the deeds to Strike, to prevent the property therein mentioned being made liable to the debts of Henderson.  [**19]  That there was some of the property of Henderson & Rogers, seized for the private debts of Henderson, contracted before the co-partnership of Henderson & Rogers, by Charles Gwinn and others. That he did apply to Alexander Irvine and Frederick Johnson to suffer him to execute deeds to them for the same property, to prevent the property being seized for the debts of Henderson & Rogers; Mr. Irvine refused, and Mr. Johnson was in Bucks county, (Pa.) and not convenient. He did execute deeds to Johnson, but he did not come in time and never received them. That it was expressly understood between this deponent and Strike, that the deeds were executed to Strike for this deponent's own benefit, and that Strike acted as the deponent's friend, to protect the property for this deponent's use, from the debts of Henderson, contracted before the partnership of Henderson & Rogers. That there was no money paid by Strike to this deponent for said property until a considerable time after, say eleven months; the property was never sold to said Strike to be kept as his own property. That Strike did for some time after the execution of said deeds, loan occasionally sums of money to this deponent, but it [**20]  was considered by this deponent, as lent money to be returned; but does not know how Strike considered it. That Strike did in presence of Strike's brother-in-law and wife, and one of his sons, promise to convey the property to this deponent in six months or six years, upon payment of the sums he (Strike,) alleged to be borrowed from him by this deponent: and this deponent did inform Mr. Irvine of the transactions. That he remained better than eighteen months in the house in which Strike now resides, after the date of said deeds; this deponent never paid Strike rent in his life. That this deponent was induced by Strike to suffer a distress to be laid on his furniture in Strike's name, that the same might be bought in for his (Rogers's) use, and prevent it being taken by his other creditors. That the said furniture was all bought by P. Coulson, for the deponent, except the candlesticks and carpet by Wolfenden, for this deponent's use; and all were sent to this deponent's house; this deponent did procure Coulson to purchase them, by the advice of Strike. That Strike did advance the money to pay for said furniture; this deponent had not at that time five dollars in the world. That the [**21]  said goods were immediately carried from said dwelling-house, when sold, to the house rented by this deponent in Whiskey-alley, after his removal from Pratt-street. That Strike advised him to remove to Whiskey-alley because the house was cheaper, and nearer his furnace and his business; and he thought it good advice at that time. That Strike, a considerable time after the date of said deeds, made out an account of the monies borrowed by deponent from Strike since the date of said deeds, including $ 500 for repairs of said house, and this deponent signed the same at his request, as an evidence that this deponent owed Strike that amount. That one of the charges in said account was $ 500 for repairs to the dwelling-house in Pratt-street. That this deponent received from Falls & Brown, two bonds of Dr. Harsnip and Shipley, in payment of a debt due to this deponent individually from said Dr. Falls for building a mill; and this deponent delivered said bonds to Strike, as his trustee, under the application for the act of insolvency. That Strike did return the two bonds of Harsnip & Shipley to this deponent, upon this deponent paying Strike the money he had paid to Colonel Small. That the [**22]  debt due by this deponent to Colonel Small, was for lumber to repair the dwelling-house in Pratt-street, purchased before the date of said deeds to Strike; and said lumber was in the house, and at the furnace, when Strike went to reside at the house in Pratt-street. That the said bonds of Harsnip & Shipley were put into the hands of J. Oakley and Wm. M'Donald, this deponent's creditors, to satisfy them part of their debts, and also a debt due Nixon Wilson. That this deponent does not know the amount due John Oakely. That this deponent was interested one-third in the lease from Strike to Coulson and M'Ardle, and Strike knew this deponent was so interested. The house in Whiskey-alley was not leased with the furnace lot. That this deponent received the rents of the houses in Whiskey-alley for nearly two years after the date of the deeds to Strike; he never paid said rents to Strike, nor did Strike ever ask deponent for them; Strike knew this deponent received said rents.

He was then examined upon cross interrogatories on behalf of the defendant Strike, and answers: That there were about 2000 bushels of wheat, and about 1100 barrels of flour, seized by Charles Gwinn and others, for [**23]  the private debts of Henderson; this was in the year 1811. That the property was conveyed to Strike for the use of this deponent and wife, and this deponent's private creditors. That he does not know how much money he received from Strike, or when, but the paper which this deponent signed for Strike is correct, except the $ 500 for repairs. That the said money was received, a triflle before, and the remainder after this deponent's application for the benefit of the insolvent law; this deponent does not recollect how much money he received from Strike. It was about eighteen months after the date of the deeds to Strike, that Strike offered to reconvey said property to this deponent. That he never was to pay Strike any thing for rent of said house in Pratt-street. That Strike advanced to him 300 and some odd dollars, which was paid by this deponent to Coulson, and by Coulson to Carroll the constable; the sales of said furniture were upwards of $ 300; the furniture was all, except one candlestick, sent to this deponent's house in Whiskey-alley; said sale was made at his house in Pratt-street; the said furniture was seized by Strike under pretence of house rent due Strike, and to prevent [**24]  other creditors from seizing it. A. Carroll levied said distress, and sold the property to the highest bidder at public auction; Strike was present a few minutes at the sale, and then gave this deponent the money which was paid to Carroll. He did receive back from Strike the bonds before mentioned, upon this defendant's paying Strike between fifty and sixty dollars, which Strike had paid Colonel Small; he thinks about $ 800 due when Strike returned him said bonds; this deponent called a meeting of his creditors at Barney's tavern, and gave said bonds, and his gold repeating watch, to John Oakely, William M'Donald and Nixon Wilson; he received no money on said bonds, after he received them from Strike, and before he gave them to Oakely, M'Donald and Wilson. That he never did put the bonds of Harsnip and Sutherland in the hands of Strike; he thinks Sutherland was a surety on Harsnip's, but there were only two bonds which were the bonds of Harsnip and Shipley. That he pledged all his property to M'Donald, to help to carry on this law suit against Strike, and to be his friend; M'Donald promising to deliver back the property to this deponent after the suit was gained, and he (M'Donald)  [**25]  paid what money this deponent owes him; this deponent is to pay M'Donald whatever money he may advance on the law suit, and what this deponent owes M'Donala, if the property is recovered from Strike; that M'Donald is to be first paid, and the balance of property to be returned to this deponent. This deponent held 400 acres in Virginia, which was willed to this deponent by F. Maguire, and he verbally conveyed his right to said land to M'Donald, until this suit be over; this deponent corrects himself by saying the land was willed to his son, John Rogers, Junior; M'Donald had lent this deponent (he thinks,) about $ 400, but paid him no money on this land; this deponent verbally conveyed the said land in Virginia to M'Donald about four months ago; when this suit is ended this deponent is to receive back said land, and all his property, upon M'Donald's being satisfied. He mortgaged said land to John Brady for the purpose of finishing L. Martin's building, but returned said Brady his money, which money M'Donald gave this deponent to return to Brady. Said mortgage was executed before his verbal conveyance to M'Donald. He lent F. Maguire $ 700 on Thursday evening, he died the Saturday following,  [**26]  and his wife took her oath before the county and orphan's court, that he had no friend in Baltimore but this deponent; and for the money this deponent lent Maguire, he, by his dying words, gave his land on Potomac to John Rogers, Jun'r. this deponent's son; and Priestman and Whalen and the widow, executors, made a deed for said lands to John Rogers, Jr. He lent the money to Maguire he thinks about two and a half years ago. This deponent promised to put in M'Donald's hands the debts due this deponent from F. Price, L. Martin and Hugh Neilson, which debts were for work done since his application for said laws. This deponent never had a final discharge, but took a stay for his body. That he owes F. Johnson nothing, but thinks if their accounts were settled he would owe deponent something. They have never settled their accounts. This deponent was not a party in the lease from Strike to Coulson and M'Ardle; the lease was made to Coulson, M'Ardle and John Rogers, Jr. to prevent the creditors from getting at the property. That he told Strike he had received the rents for the houses in Whiskey-alley. That Strike lent him no money at or before the time of the execution of the deeds; the money [**27]  was lent in the years 1814 or 1815 as deponent thinks. That he promised continually to return the property to deponent, but the time before mentioned by him, was the last. That Strike had lent him nothing at the time of the execution of the deeds, but he promised deponent frequently afterwards to return him his property, upon payment of what deponent owed him. That Strike did cut down the trees in Whiskey-alley, and one before the door in Pratt-street; deponent complained, and Strike promised to satisfy him for the injury, if any. That M'Donald frequently told deponent that his watch was safe enough; deponent thinks that M'Donald would return it if asked, but he was never asked for it. That his son John is between fourteen and fifteen years of age. That a few days ago, on the morning of his long examination, Strike took him to the tavern at the corner of St. Paul's-lane and Chatham-street, and treated him with liquor; he proposed to deponent to come before the commissioner and say that he, Strike, had lent the deponent $ 3500, and his, Strike's, house should never be shut against him, Rogers, and he would settle the balance with him at some other time. That it was the morning of his [**28]  examination, and just before he delivered his testimony. That he certainly means the money which M'Donald gives to himself, or his attorneys, in carrying on the law suit, and for the support of his family. That the said sum of $ 700 was part of the profits of his furnace, and not lent him by Strike. He put in $ 1880 in the concern with Coulson and M'Ardle, in the furnace built upon one of the lots now in dispute; that this was in 1814 or 1815, as he thinks; that some of this money was lent by Strike, and some received from Hugh Neilson, Ennion Williams and Frederick Price, for work done for them, which was collected by him from the above persons in 1814 or 1815, for work done by him before that time. That he thinks he became concerned in said furnace in the year 1814 or 1815, with P. Coulson and M'Ardle; that upon reference to the lease he finds he was mistaken, and that his concern in the furnace commenced in 1812; that he does not recollect what sum of money he employed in said furnace from time to time, that he only put $ 1880 in the same concern, altogether, as his whole capital; that the concern existed eighteen months or two years. That he rented the upper rooms of the house [**29]  in Pratt-street to Mrs. Ramsay, after the conveyance to Strike, at five dollars per month; that he thinks Mrs. Ramsay resided about two years in the house; that he never rented any part of the house in Pratt-street to any body until after the conveyance to Strike. That his son, John Rogers, jr. resides in the city of Baltimore, and never was in Virginia to deponent's knowledge. That he did not apply to Strike, or press him, to consent to withdraw the present case out of court, and did not suppose Strike would speak to him; that he told Strike he would soon have it settled by two honest men, as the law suit was expensive to him and his children, and kept him from his trade; that he never said his lawyers were trying to get the money into their hands, and that deponent would never get any part of it.

The defendant Strike, exhibited his lease to Coulson and M'Ardle, dated the 6th of October 1812, for a parcel of ground in Baltimore, for 10 years, at the annual rent of $ 80. Also a deed from Susanna M'Guire, Jonathan Whelan and Thomas Priestman, administrators of Francis M'Guire, to John Rogers, junior, dated the 8th of February 1816, for 388 acres of land in Hampshire county, in [**30]  the state of Virginia. Also a deed of mortgage from John Rogers, junior, to Samuel Blair and John Brady, dated the 20th of March 1816, of the 388 acres of land, &c. Also a deed for the same land from John Brady, the trustee in the last mentioned deed, and who had sold the premises, &c. to John Donaldson, dated the 16th of September 1816. Also a deed from John Donaldson to John Brady, for the same land, dated the 28th of December 1816. Also a deed for the same land from John Brady to William M'Donald, one of the complainants, dated the 3d of October 1818, consideration $ 258. Also a deed of mortgage from John Rogers. to William M'Donald, dated the 26th of November 1817, to secure the payment of $ 700, with interest from the 1st of May 1819. This deed was for 412 acres of land in Hampshire county, in the state of Virginia, and is stated to have been conveyed by Whelan and Priestman, administrators of M'Guire, and by Susanna, his widow, to the said Rogers. Also a deed of mortgage of the same land from John Rogers, to William M'Donald, dated the 24th of November 1817, to secure the payment of $ 300, with interest as aforesaid. Also a number of recepts given by Mrs. Rogers for rent of a [**31]  part of the premises in dispute; and also receipts for ground rent, taxes, &c. paid by Strike from 1810 to 1818. Also a deed of assignment of a lease from Robert Henderson to John Rogers, dated the 30th of September 1809, of the lot, &c. on Pratt-street, in consideration of $ 1900. Also another deed of assignment of a lease from Robert Henderson to John Rogers, dated the 30th of September 1809, for another parcel of ground in Baltimore county, and near the city of Baltimore, beginning at the distance of 90 feet E from the N E corner of Pratt and Paca-streets, on the N side of Pratt-street continued, running E bounding on Pratt-street continued 33 feet, then N parallel with Paca-street to Whiskey-alley, &c. consideration $ 500.

Strike, one of the defendants, afterwards filed another answer stating that he believes Rogers petitioned for the benefit of the insolvent laws, and filed with his petition a schedule of his property, and a list of his creditors and debtors, but for greater certainty begs leave to refer to the same of record in this court. This defendant admits he was appointed trustee for the benefit of the creditors of Rogers, and that Rogers, in pursuance of the said [**32]  insolvent laws, made and executed a deed to this defendant, which is also of record in this court. That this defendant at the instance of Henry Rogers, Esquire, attorney at law, instituted suit in Baltimore county court against Penelope Price, late widow of Frederick Price, one of the debtors of Rogers, the insolvent debtor aforesaid, and contained in his said schedule, the cause of action whereof had been before, as this defendant hath been informed, placed by John Rogers in the hands of the said Henry Rogers for collection. That Greetham & Devereaux, other debtors of Rogers, and mentioned in his schedule, were insolvent debtors, and evidently not solvent at the time of this defendant's appointment as trustee aforesaid. He hath no knowledge of any claims or debts due to Rogers than are contained in his said schedule, except as hereinafter mentioned, if such may or can be deemed belonging to Rogers at the time of said insolvency. That Rogers, before his application for the said insolvent laws, conveyed to the defendant, for the consideration mentioned in the deeds, the lots of ground therein mentioned; and this defendant denies that the said deeds were made to him by Rogers, in trust [**33]  for Rogers's benefit, or to defraud Rogers's creditors; but this defendant saith, that he paid to Rogers the full consideration expressed in said deeds for said property. He admits that the complainants have filed their bill in equity in this court against this defendant and Rogers, and that a commission has issued to take evidence, and has not yet been returned; but he denies that the testimony taken under said commission does establish the fraud and want of consideration as set forth in the complainants' bill. He denies that he ever procured himself to be appointed trustee for Rogers, by fraudulent collusion, as set forth in the bill. He was appointed trustee without any solicitation on his part, and did not know of said appointment until it was made. That after he was so appointed trustee he was about to take the possession of the property mentioned in the schedule of Rogers. He found that the property being household furniture was claimed by the landlord of the said house, wherein the said furniture then was, to a larger amount than the said property was worth, and that the said claim of said landlord was for house rent in arrear. That long before Rogers applied for the benefit [**34]  of the said insolvent laws, he placed in this defendant's hands, then a constable of Baltimore county, for collection, two bonds of a certain Harsnip & Sutherland, the amount whereof he cannot precisely recollect, but which he believes are now in the possession of Wm. M'Donald, or the same has been collected or recovered by him. That Rogers had created liens on the said two bonds then uncollected, so held by the defendant, one in favour of William M'Mechen, Esquire, for $ 120, the other in favour of Jacob Small for $ 80; and this defendant, long before his said appointment as trustee, received notice of said liens, and was directed to hold the said sums of money for the said M'Mechen and Small, by them, with Rogers's consent. That after his said appointment as trustee he received a note in writing from M'Mechen, desiring him to deliver the said bonds to Mrs. Rogers, wife of Rogers, as he had taken Rogers's note for the debt due him from Rogers; and Mrs. Rogers having paid this defendant the sum of $ 80, the amount of Small's lien, he delivered up the said two bonds to Mrs. Rogers, under the impression and belief that he, as trustee, had no right to retain the said bonds, because they [**35]  were not mentioned in the schedule filed by Rogers with his petition for the benefit of the said insolvent law, and were claimed as aforesaid. That Rogers, having received the said two bonds last mentioned from his wife, as this defendant is informed and believes, deposited the same with a certain Robert R. Richardson, in pledge, or to have the same discounted. That Nixon Wilson, a creditor of Rogers, issued an attachment against Rogers to affect the said bonds in the hands of Richardson. That the said bonds were delivered to Wilson by Richardson with the consent of Rogers. That William M'Donald afterwards applied to Wilson for said notes, which were delivered by Wilson to M'Donald who now holds the same. That he never received any part of the said two bonds, nor hath he received any money or property of any description from the estate and effects of Rogers since his appointment as trustee aforesaid, or before his said appointment as trustee, belonging or which ever belonged to Rogers's creditors which he ought to account for under his trust. He denies that he hath been guilty of any fraud or neglect as trustee of Rogers. He denies that Rogers handed to him any evidences of debts due [**36]  to him, or accounts due to him, or any other property, real, personal or mixed, than is mentioned in his said schedule, nor did this defendant receive an account or voucher for the debts due Rogers mentioned in his schedule. He hath not received any of the debts due Rogers, mentioned in his schedule aforesaid. He hath no knowledge of any claims or debts due Rogers more than are contained in his said schedule, except the two last mentioned bonds, and that in the manner herein before stated. He hath heard and believes that Rogers was seized in fee simple of a tract of land lying in Virginia, containing about 412 acres, which said land belonged or ought to belong to his, Rogers's creditors, as this defendant is informed, which said land Rogers hath caused to be conveyed to William M'Donald, by deed of bargain and sale, in payment of the complainants' claim, which they allege is now due from Rogers to them. A record of the discharge of John Rogers under the insolvent laws of Maryland was also exhibited.

DORSEY, Ch. J. of the sixth judicial district of Baltimore county court, (28th of May 1822, during March term 1822.) The said cause being ready for hearing, and having been fully argued [**37]  by complainants and defendants, the bill, answers, exhibits, testimony, and all other proceedings, were by the court read and considered; and it being fully established to the satisfaction of the court that the deeds of sixteenth of January, 1811, from the defendant Rogers to the defendant Strike, mentioned in the said proceedings, were executed for the purpose of defrauding the creditors of Rogers, and without bona fide consideration.--Decreed, that the said deeds be, and they are hereby declared null and void, as against the complainants in this cause.--Decreed also, that the property in said deeds contained be sold. That Henry W. Rogers and Samuel Moale be, and they are hereby appointed trustees for the purpose of making said sale, &c. And the trustees shall bring into this court, the money, or securities for money, arising from said sale or sales, to be applied, under the court's direction, after deducting the costs of this suit, and such commission to the trustees as the court shall think proper to allow, in consideration of the skill, attention and fidelity, wherewith they shall appear to have discharged their trust. All equities as to the distribution of the proceeds of sale,  [**38]  are reserved by the court for hearing, on the trustees' report, on bringing into court the money or securities arising on the sale.

WARD, A. J. (31st of January 1825.) In this cause, upon motion of the complainants' solicitor, it is Ordered and decreed, that it be referred to the auditor of this court, to state an account of the sums appearing due in this cause from the defendants, or either of them, to the plaintiffs; and also to take an account from the proofs in the cause, or such other proofs as may be required by him of the rents and profits of the several premises contained in the deeds of 16th January, 1811, from the defendant Rogers to the defendant Strike; and also of the taxes and necessary repairs paid on the same by him; and also such further account as he may be directed to take by the said plaintiffs or defendants, and submit the same by report to this court, reserving further consideration, &c.

The property was sold by the trustees, and the proceeds of sale brought into court. The lot on Pratt-street was sold to William M'Donald, one of the complainants, for $ 2600; the other lot was sold to James Lyon for $ 1350. The sales were ratified by the court. The auditor [**39]  was directed to state the account of the trustees.

The following petition of the solicitors of the complainants was exhibited by the complainants. In this case the court has ordered that notice be given to the creditors of Rogers, to exhibit their claims in this court for settlement. The undersigned solicitors for complainants, beg leave to state, that by an agreement made with their clients on 18th September 1820, it was provided that they should receive as a compensation for their services, a commission of 20 per cent. on the sum recovered, deducting therefrom the sum of $ 50 to each of them, respectively, paid on that day. Under this agreement they have conducted the case to a decree, and the court will see by the voluminous record, not without great labour and difficulty in the preparation of the case, beside a very long and laborious argument, occupying more than a week of the exclusive attention of the court. By the report of the trustee, it appears that the amount of sales is $ 3950, on which, according to the above agreement, they are entitled to the commission of 20 per cent. but as the introduction of other creditors into the case, may lead to some difficulty, they pray [**40]  the court to sanction this allowance by their order, directing the auditor to state this as one of the allowances to be made in the sale in the trustees account.

ARCHER, Ch. J. on the within petition, it is this 9th day of January 1824, Ordered and directed, that the auditor, in stating the account with the trustees, allow to Henry W. Rogers and Henry M. Murray, solicitors for complainants, the sum of $ 690, as complete fees for conduct of the case, subject to the usual exceptions.

On the 6th of April 1824, the auditor made his report, stating that he has examined the proceedings in this cause, and from them has stated the claims against the late firm of Henderson and Rogers, and John Rogers, and also the within account between the estate of John Rogers, and the trustees; that from the papers in this cause, it appears that the complainants have received the sum of $ 549 10, the amount of two bonds due to Rogers, but that there is no evidence to show that they are entitled to retain the same to their exclusive benefit, except the amount of $ 476 13, a part thereof having been by them paid in discharge of a lien upon the said bonds, and the balance in securing the same. The [**41]  auditor has therefore credited the estate with the whole sum thus received by them, with interest thereon, and has stated the sum then paid them as preferred claims, in order that they may account with the trustees for the difference in receiving their dividend. The auditor also reports, that in stating the said account, he has credited it with the proceeds of the sale; and that he has in the first instance applied the proceeds of the said estate to the allowance to the trustees, the costs in this court, the preferred claims of the complainants before mentioned, and the allowance of their solicitors, and that he has distributed the balance pro rata, amongst the creditors. The auditor also reports, that in stating the said claims and accounts, he has not noticed the claims of the defendant Strike, because the whole of them appear to have proceeded from, and to have grown out of the first fraud between Strike and Rogers, and are not therefore entitled either to a preference or dividend.

The complainants excepted to the report of the auditor, 1st. Because there is no evidence sufficient in law to support the various claims stated in said account, except the complainants claim, filed [**42]  or exhibited in the cause. 2d. Because the said claims, or the greater part of them, have been paid and satisfied--your exceptants particularly charge that the following claims, reported by the auditor, have been fully satisfied, viz. &c. and others which the exceptants will be prepared to prove as this court may direct. 3. Because the whole of said claims are barred by the act of limitations, which your exceptants plead and rely on in bar of said claims. 4. Because from the laches and neglect of the several parties named in said account and report as creditors, to prosecute their several claims, they are not entitled to the aid of this court, or to come in for a proportion of said funds; and have not applied to be let in for such distribution. 5. Because said report and account are not in conformity with the evidence in the cause, or warranted by the principles of equity, and are in other respects erroneous.

The defendant, Strike, excepted to the report of the auditor--1. Because the auditor hath not stated the claim of the said Strike which is filed in the said cause, and the evidence which shows the veracity of the said claim sufficiently proved therein. 2. Because the auditor [**43]  in his report hath mistaken both the law and the fact relating to the said claim of the defendant Nicholas Strike.

On the 17th of May 1825, the auditor made another report, in which he stated, that since the 13th February 1824, when he stated an account between the estate of John Rogers and Henry W. Rogers and Samuel Moale, Esq'rs. trustees of the said John Rogers, and made a statement of the claims against said John Rogers, (which said account and statement are filed in this court,) the complainants in this case have filed additional claims against said Rogers, which are herewith stated. And the auditor further reports, that the claims of Hollingsworth & Worthington, and Irvine & Beatty, contained in the aforegoing statement, have been withdrawn; and that, except the schedule of John Rogers, there is no proof to establish any of the claims contained therein, but the claims of the complainants and of Robert Taylor. That the claim of the said Taylor is for a judgment rendered against Robert Henderson, the former partner of Rogers, at October term 1812, of Baltimore county court, on a joint action with Rogers, which said judgment was revived against Henderson at March term 1821.  [**44]  The auditor further reports, that he has herewith made a statement of the rents received by Strike, and the sums expended in repairs done on the property in this cause mentioned, and in payment of taxes and ground rents thereon, so far as he could collect the same from the papers in the cause. And further, that although he gave notice to the counsel of the complainants and defendants, to produce any further testimony which they might have, no additional testimony has been produced.

The defendant, Strike, excepted to the last mentioned report of the auditor--1st. For that the auditor hath not stated the entire claim of the said defendant, Strike, and that the said claim is not correctly stated from the evidence in the said cause.

2d. For that Strike claims the whole proceeds of the said sales of the said property mentioned in the said report, statement and proceedings, in preference to all the other claimants in the said cause, and will contend that he is so entitled.

3d. For that the said report and statement is erroneous and defective in point of law and fact; wherefore the said defendant, Strike, begs leave to except to the same, and that the said report and statement [**45]  may not be confirmed by this court, but that the same may be remanded to the said auditor, or set aside and annulled.

The complainants excepted to the said report--1st. For that the auditor hath stated the claims of Strike, one of the defendants, for materials, work and repairs made upon the dwelling-house inhabited by him, which were done for his accommodation, and not to benefit the property.

2d. For that the said expenses and repairs were incurred by Strike under deeds which have been decreed by this court to have been obtained by Strike from Rogers, in fraud of the bona fide creditors of the firm of Henderson & Rogers, of which Rogers was a partner, and without consideration.

3d. For that the said auditor hath not charged Strike with the difference between the prices bid by Strike at a public sale of the said property by the trustees, and the subsequent sale of the same, he having refused to comply with his purchases.

4th. That the said auditor hath reported the claims of Strike for repairs done to said property, although Strike has refused to produce the bills of the persons who did the repairs, and has relied upon the conjectures of said persons as to their [**46]  probable value after a long lapse of time.

5th. These complainants further except to the claim hitherto audited in the first report in favour of the Mechanics Bank of Baltimore, because the same is barred by the statute of limitations, the said claimants having laid by, without making any demand, until these complainants, believing themselves the sole creditors, had, by their own exertions, and at their sole and great expense, succeeded in setting aside the deeds in this cause mentioned, when they have first presented their demand.

6th. For that the said report and statement is erroneous and defective in point of law and fact; wherefore the said complainants beg leave to except to the same, and pray that the report and statement may not be confirmed by this court, but that the same may be remanded to the said auditor, or set aside and annulled.

The cause and proceedings were afterwards transmitted to the court of chancery under the act of 1824, ch. 196.

The cause was then set down for argument, and was argued.

BLAND, Chancellor, (10th of April 1826) This case has been very elaborately argued, and is now presented to the court for the purpose of being finally [**47]  closed. It appears to have been warmly contested in every stage. It has been partly decided, but there yet remains much to be judicially considered and determined.

There is no principle in relation to the administration of justice, which it is more important to preserve, or more necessary to adhere to than, that there must somewhere be an end to litigation. A matter which has been once solemnly decided, ought not, nor cannot be reheard and readjudicated; controversy must have an end, or society could have no peace. Errors of an inferior tribunal may be corrected by a superior; and even the same court, under certain circumstances, will correct its own mistakes by motion, petition, or bill of review. But no court of justice can allow itself to be engaged in the endless task of weaving and unweaving; of progressing to an adjudication, and then going back to readjudicate. Hence, whatever has been heretofore determined in this cause must now be considered as finally settled, and in every respect unalterable, except by bill of review, appeal, or in the regular course of law. This does not seem to have been directly controverted in the argument; but the counsel differ widely as to the [**48]  nature of the decree of March, 1822--and as to how far it extends over the matter of this suit; and some arguments have been urged which, if yielded to, might lead the court unwarily to trench upon the confines of that decree.

The first inquiry, therefore is, how much of this case yet remains to be judicially passed upon. This case was originated on the equity side of Baltimore county court, and has been removed into this court according to the act of assembly authorising such removals. It stands here now as it would have stood had it continued there, or as if it had been begun and instituted here, and these proceedings are to be so considered. They have not been affected by any mere circumstance of place or tribunal, but are here as if they had all passed under, and been sanctioned by the judicial authority of the present chancellor, and will be so treated accordingly.

The complainants come into court as the creditors of Henderson & Rogers, of both and each of them. These plaintiffs complain that their debt has not been paid; and they are here seeking payment. To enable this tribunal to give them the relief they ask; and which cannot be obtained without the aid of its peculiar [**49]  powers; they point to certain property which they allege was once confessedly, and ought now in reality to be within their legal reach and subject to the payment of their claim. They allege, that this property which was at one time held by, and in the name of their debtor, Rogers, has been and is now iniquitously covered up and withdrawn from their grasp, by certain deeds of conveyance made by their debtor, Rogers, to a certain Nicholas Strike; they pray that this cover, and these impediments, may be removed; that the property may be sold; that the rents and profits of it may be accounted for; and that the proceeds may be applied in satisfaction of their claim. These plaintiffs then call on Rogers and Strike, as defendants, to meet and repel these allegations if they can.

Rogers appears, and admits that he is the debtor of the plaintiffs, and admits that he conveyed the property in question to Strike, but denies that it was done with any fraudulent design; on the contrary he avers, that those conveyances to Strike were made by him in trust for, and the better to secure the payment of all his just debts. Strike comes in and boldly takes his stand in direct and total opposition [**50]  to the plaintiffs. He avers and undertakes to maintain and prove, that he acquired the property in question for a full and valuable consideration, and that he has a right to claim protection here, as a fair and bona fide purchaser. He plants himself upon the honesty of his title, and claims nothing by his answer which should not be conceded to a defendant who fully sustains such a defence as he has set forth.

In application to this claim and defence, proofs have been collected, and the case has been submitted to the decision of a competent tribunal, who in March 1822, declared and decreed, that the conveyances from Rogers to Strike were "null and void as against the complainants;" that the property in question should be sold; that the proceeds be brought in "to be applied under the court's direction," and concluding with a declaration, "that all equities as to the distribution of the proceeds of sale are reserved by the court for hearing," on their being brought in. Jones v Slubey, 5 Harr. & Johns. 383.

It is held to be a first principle, by every court of justice, that no one can ask for its determination without showing a sufficient ground for its decision. Before a plaintiff [**51]  can call for a determination in his favour, he must furnish the court with a basis whereon to rest its judgment. In this case, the validity and sufficiency of the plaintiff's claim, are the very foundations of the decree; without that claim having been proved or admitted, no such decree ought or could have been rightfully made. It does, therefore, necessarily and conclusively establish the plaintiff's claim; and consequently, that claim cannot now, in this stage of this cause, be again in any manner put in controversy. This is the first point settled by this decree.

The decree then proceeds to remove obstructions, and to grant facilities. The deeds which were the impediments complained of, are declared to be null and void; or, in other words, as between the plaintiffs and defendants, they are totally annihilated. Whatever validity or operation they may be permitted to have, as between Rogers and Strike, they can have none at all "as against the complainants." In relation to them, this property is to be dealt with as if those deeds had never existed. This is the second point settled by this decree.

But it would have come to a most lame and impotent conclusion had it stopped [**52]  here; therefore, after having determined that the plaintiffs had a claim, which ought to be satisfied, and that they had a right to have recourse to this property, it goes on to declare, that the property shall be sold, and the proceeds brought in to be paid over as the court should direct. And this is the third point settled by this decree. So far then the matters in controversy between these parties have been finally closed; and this decree must be regarded, as all others of a similar nature have been, as a final decree; one in which all the material rights of the parties have been considered and adjudicated upon.

But the decree speaks of further directions, and of equities reserved; and it has omitted to say any thing of certain incidents to those rights which it had finally settled. As to all these particulars this decree yet remains to be fulfilled and executed. When a case circumstanced like this, is brought before the court, it is spoken of as a case for further directions; and this phrase is used in reference to all cases, where after the final decree, as in this instance, a further and eventual interposition of the court becomes necessary, to follow out and complete the [**53]  equity, the substance of which has been established by the final decree. These further directions are spoken of in this decree, and in all similar decrees of this court, and of the English court of chancery; but in giving them, the court must act consistently with itself; and in this instance, where the decree speaks of "the court's directions," and of all equities being reserved, its phraseology must be made compatible in all its parts. The reservation of all equities must not be used to fritter away, and to abnegate the substance of any matter, which had been in a previous part of the decree carefully and solemnly decided. No directions, therefore, will or can now be given, which are incompatible with the points settled by the decree. It is now brought before the court to be executed and completed, not in any manner to be revised or impaired. The Santa Maria, 10 Wheat. 442.

The decree of March 1822, is predicated upon the existence of a debt due to the plaintiffs; but it does not specify the exact amount, nor does it say any thing of the interest thereon. Interest in equity is held to be something more than a mere incident; it is the production, the fruit of the [**54]  money due. In this case these creditors may now call for directions as to these particulars. An exact estimate of their claim could not with propriety have been made until after the sale of the property decreed to be liable for its payment; because according to the course of the court in such cases as this, where the proceeds are insufficient to pay all, the interest is to be calculated only up to the day of sale. This then is the first point left open by this decree; but it is a matter which is reducible to precision and certainty by the calculation of the auditor, to be made according to established principles, from the proofs in the cause; any further special directions in this instance, therefore, are deemed wholly unnecessary.

In this case, the bill expressly prays, that the defendants may be ordered to account for the rents and profits of the property in question. The decree has determined, that it was unlawfully detained, by declaring the deeds under which it was held, null and void. It follows therefore, as a consequence of this decision, that an account of the rents and profits should now be ordered, and that directions should be given, as to the time for which the account [**55]  is to be taken, and as to the manner of taking it. This is the second point left open by this decree; and, as to which the chancellor will now give directions.

The decree totally annuls the deeds under which Strike claims, without retaining them as a security for any thing. He can now therefore, claim nothing whatever under them as against the complainants. But, if under all the circumstances of this case, apart from those deeds, and compatibly with the matters decided by the decree, he can show any equitable claim to an allowance for improvements he put upon the property in question, while it remained in his possession or under his control, the court may now give directions concerning such an allowance. This is the third point left open by the decree, and upon which the chancellor will now decide.

This is one of those cases in which one creditor is allowed to file a bill for the purpose of subjecting the property of his debtor to the payment of his own claim; and of all others who may obtain permission to come in and participate in the burthens and the benefits. The other creditors are allowed to come in at any time, either before or after the decree; and it is most usual [**56]  and proper that the decree itself should command the trustee to give notice, at the time of advertising the property for sale, to all creditors to bring in their claims with the vouchers. This is the fourth point which has been left open in this, as in all other decrees of the kind. The further directions as to claims which may be thus brought in, comprehends every thing concerning them. As to all matters of this nature, so far as may be deemed necessary in this case, the chancellor will now give directions.

It is said to be an established rule of the Roman law, and that of almost all modern nations, that the true proprietor shall not recover from the bona fide possessor, any rents and profits which have been consumed by him. But whatever fruits and profits, whether natural or industrial, such as trees standing or felled, grain growing, and the like, which remain upon the land at the time the true proprietor established his right, belong to him, and may be recovered from such possessor, as well as the land itself. Yet, as it would seem, if it can be ascertained, that the bona fide possessor was not merely maintained by the rents and profits, but was actually enriched by them,  [**57]  as by applying them to the payment of his debts, he will be held accountable to that amount to the rightful proprietor. But this general exemption is not granted to him, who, knowingly, keeps possession of another's estate, and therefore he is compellable to account for all the mesne profits he has derived from the land prior to its being recovered from him. Prin. Eq. 411, 420. Just. Inst. l. 2, tit. 1, s. 35.

According to the common law of England, the real owner may recover the rents and profits from the tenant, whether they remain upon the land or have been consumed by him or not; nor does the occupying tenant's knowing any thing of his adversary's title make any difference, as to the nature and extent of his liability for rents and profits. At common law no damages were recovered in any real action; because, as it was said, until the right to the land was determined, the party could not be said to suffer any wrong. But it seems to have been considered as well established law from a very remote period, that the right to maintain an action of trespass for the recovery of the mesne profits, followed as a clear and necessary consequence of the party's having established his right [**58]  to the land itself. And it appears to be somewhat singular, that during the period when real actions were much in use, the legislature should have deemed it necessary to interpose, for the purpose of allowing by positive provision, the demandant in many of them to recover damages or rents and profits, and yet that those real actions so amended and improved, should have been superseded by the action of ejectment, in which as it now seems to be settled, nothing is recovered but the land, and the party is left, as at common law, to recover the mesne profits in a separate action of trespass. But the right to recover the mesne profits by way of damages in the modern action of ejectment itself, is recognized by an English statute passed in the year 1664, and the practice of so recovering them, seems to have prevailed for some time in England and also in this state. 2 Bac. Ab. 437. Lewis's Lessee v Beale, 1 Harr. & M'Hen. 185. Joan & M'Cubbin v Shield's Lessee, 3 Harr. & M'Hen. 7. Gore's Lessee v Worthington, Ib. 96. Stat. 16, & 17, Car. II, ch. 8.

As early as the year 1667, in a case where lands were settled for the payment of debts, the trustees were held accountable in equity for [**59]  the rents and profits to the creditors for whom they were received; and in 1685, it was held by the court of chancery, that he who took the mesne profits by wrong, was considered as trustee for, and accountable to him who had the right; and thenceforward the court of chancery made all persons account for the mesne profits they had received, to such persons as had the equitable title. And it is now settled, that where there is a serious difficulty of recovering at law, fraud, concealment or the like, or where the title is merely equitable, the party may recover the rents and profits in equity. But in chancery, as in the courts of common law, there seems to have been always a strong disposition to keep the adjudication upon the title entirely apart from the direction as to the mesne profits. It is not improper that the final decree, settling the right to the property, should also go on and decree an account for the rents and profits, but it is usual, where the property is sold, as in this case, to leave the account of the rents and profits to be provided for in the subsequent and further directions. 1 Bac. Ab. 34. 2 Bac. Ab. 263. Spish v Foster, 1 Ves. 89. Dormer v Fortesque, 3 Atk. 124. [**60]  Runn. Eject. 444.

Where the party has no equitable ground of relief, and is under the necessity of proceeding at law, by an action of trespass for the recovery of the mesne profits, the tenant or defendant, by pleading the statute of limitations, may prevent the plaintiff from carrying his claim in all cases, as far back as the commencement of his title, and the wrong he has suffered. And should he proceed in equity, if there has been a mere adverse possession without fraud or concealment, the account will be taken only from the time of filing the bill, for it was his own fault not to have filed it sooner. But where the bill is brought upon an equitable title, and there is a trust; and in the case of an infant, or where there has been any fraud; and in cases of dower, an account of the rents and profits will be ordered, and that from the time the title accrued. Pulteney v Warren, 6 Ves. 89, 93. Dormer v Fortesque, 3 Atk. 124. Goodtitle v Tombs, 3 Wils. 121.

In an action of trespass for mesne profits, they are assessed at the discretion of the jury in damages, and therefore governed by no settled rule as to the amount. The jury may, if they think [**61]  the circumstances of fraud and wrong warrant or require it, give large and vindictive damages, even as much as four times the value of the mesne profits; or, on the other hand, they may mitigate the damages down almost to nothing; and it does not appear that their unlimited discretion in this respect, has ever been materially controlled by granting new trials. The court of chancery is more steady in its principles, with regard to the amount of the mesne profits. If the occupant is the mere rightful holder of the property as a pledge; for example, as mortgagee who has been let in possession, he is held accountable for no more than he has actually received, what has really come into his hands, and not for the full value, or what he might have made by skilful and proper management. But where the occupant is a wrongful holder, or has obtained possession, and has held it fraudulently, or where, there being several incumbrances, the first mortgagee uses his security for the purpose of shielding the debtor from the junior mortgagees; in such cases, such a fraudulent or wrongfully occupying tenant, or an incumbrancer who makes such an ill use of his security, will be charged with the full [**62]  value; that is, with such an amount of rents and profits as a skilful and diligent tenant might have made from the land.

In this case, Strike informs us in his answer, that he obtained possession of the property in question (the one lot actually, and the other legally, as the landlord of Rogers, on whose property he levied a distress for rent in arrear,) under and by virtue of the deeds from Rogers to him, on the date of them, and that he took and received the whole rents and profits. Those deeds have been declared null and void by the decree of March 1822, as against the complainants, on the ground of fraud. It appears, then, that Strike obtained possession of the property in question, fraudulently; that he used those deeds against these creditors, and that he wrongfully held the possession, and received the whole of the rents and profits from the date of those deeds; consequently, according to the principles of equity by which this court is governed, and I may venture to add, by the law of all civilized nations, in relation to the rents and profits, Strike must be charged with the full value of the property in question, from the date of the deeds down to the date of the sale [**63]  when he was turned out of possession.

In relation to the improvements for which Strike claims an allowance, one would suppose, that in the administration of a system of jurisprudence in a civilized society, there would be no flux and reflux of the principles of justice; that a rule once found necessary could never drop into oblivion; that however it might be altered or reformed, it could never, for any length of time, be wholly forgotten, and then be called up again, and generally applied. But it would seem there is a fluctuation, perhaps indeed a mere change of fashion as to principles of law, as in every thing else. It does not appear from any thing I can learn, that the doctrine, in relation to an allowance to the occupying tenant for ameliorations, was ever at all, until very recently, presented to the consideration of a court of justice in this state as a subject of controversy, and perhaps never before so urged and investigated as it has been upon this occasion. Drury v Watkins, March 1823, (MS.) Quynn v Haines, 3 Harr. & M'Hen. 128. The principles of law, in relation to this matter, belong to our code, but until lately, they have been suffered to lay unnoticed among those [**64]  rarely used regulations, which are seldom examined but by the curious. In a neighbouring state, so far back as the year 1643, it seems to have been deemed expedient to place upon its statute book, all the rules in relation to compensation for improvement, made upon the land by one man, the title of which was in another. 1 Hen. Virg. Stat. 260, 349, 443. 2 Hen. Virg. Stat. 96. Yet upon a recent occasion, when a judicial decision was called for upon the occupying claimants law of Kentucky, involving matters which in a greater or less degree attracted the attention of the whole Union, it was found that those legislative provisions had disappeared from the revised statute book of that state, and it required some care to ascertain distinctly what was then its law upon the subject. Green v Biddle, 8 Wheat. 1, and App. n. 1.

It seems to be a sound and a very generally admitted principle of justice, that no man shall be allowed to enrich himself from the losses of another, or, as it is expressed in the Roman law, nemo debit locupletari aliena jactura. The moral force of this rule, in all cases to which it applies, and as between parties alike fair and innocent, appears to [**65]  have been considered as altogether irresistible. In all cases in which the court is called on to apply this rule, it is essential that it should most clearly and distinctly appear, that he who claims an allowance for his losses in the shape of compensation, for improvements, should be entirely and absolutely free from all blame, because equity never interferes in favour of a wrong-doer. In cases where a bona fide possessor of property, one who is ignorant of all the facts and circumstances relating to his adversary's title, under a confident apprehension and belief that he was himself the true owner, proceeds to make improvements, and increase the value of the subject so held, it seems to have been almost universally admitted, that an allowance for such increased value should be made, at least to the extent of the rents and profits. According to the Roman law, such a claim for improvements may be extended to their full value, beyond the amount of the rents and profits as against the improved subject itself. Dormer v Fortesque, 3 Atk. 134. Prin. Eq. 103, 421. Sugd. 525. Just. Inst. l. 2, tit. 1, s. 29, and notes. And so, too, according to the marine law, an account for [**66]  meliorations is made, if necessary, even beyond the profits; and for ascertaining the amount, the rule is to consider the quantum of the improved state in which the ship comes into the hands of the original proprietors, for as to that part, it is not a restitution to them, but a new acquisition. 2 Rob. 239. 3 Rob. 101. 5 Rob. 294 But according to the English principles of equity, if the true owner insists on an account of rents and profits, as he may, not according to the value when the purchaser entered, but according to the present value, the court will order an allowance to be made for repairs and improvements. Sugd. 525.

But where a man has acted fraudulently, and is conscious of a defect in his title, or has bought a title notoriously bad at the time of the purchase, in such a case as a mala fide possessor, he is permitted by no law to make any claim whatever for improvements; he must take the consequences of his own imprudence. By the Roman law it is declared, that if a man build with his own materials upon the ground of another, the edifice becomes the property of him to whom the ground belongs, because the owner of the material is understood to have made a voluntary alienation [**67]  of them, if he knew he was building upon another's land; and in the English court of admiralty, it has been held, that if a person buys a ship, the title to which is notoriously invalid, it must be at his own peril that he proceeds to lay out money in repairing and improving her, as no allowance for ameliorations will be made in such case. Just. Inst. l. 2, tit. 1, s. 30. 5 Rob. 294.

In the argument of Coulter's case, 5 Coke, 30, among other things, it is said, "in divers cases, one who is in of his own wrong, shall recoupe and retain, &c. He who hath a rent of £  10 issuing out of certain lands, disseises the tenant of the land, in an assess brought by the disseisee, the disseisor shall recoupe the rent in the damages; so that where the mesne profits of the land in such case were of the value of £  13, the disseisee shall recover but £  3. The disseisor shall recoupe all in damages which he hath expended in amending of the houses." And as an authority in support of the last position, a case is cited as far back as the year 1340. This argument is adduced in a case in which the only question was, whether an executor de son tort could retain. The court in their opinion held that [**68]  he clearly could not, assigning the most satisfactory reasons; and they then go on to say, that "as to the case of recouper in damages in the case of rent-service, charge, or seck, it was resolved, that the reason of recouper in such case is, because otherwise when the disseisee re-enters, the arrearages of the rent service, charge, or seck, would be revived; and therefore to avoid circuity of action, and circuitus est evitandus et boni judices est lites dirimere, ne lis ex lite oriatur, the arrearages during the disseisin shall be recouped in damages; but if the disseisor ought to have common on the land, the value of the common shall not be recouped, for by the regress of the disseisee, he should not have any arrearages or recompence for them." Green v Biddle, 8 Wheat. 81. The court take no notice of the position advanced in the argument, that "the disseisor shall recoupe all in damages which he hath expended in amending of the houses," and assign a reason for allowing the recouper in the other instances put, that is utterly incompatible with allowing a disseisor or mala fide possessor, to recoupe what he had expended in mending the houses, and therefore the position [**69]  cannot be admitted to be sound law, to the full extent for which it was advanced, if at all.

The term recoupe in the common law, signifies the keeping back or stopping something which is due, and is used for "to defalk or to discount;" of which Coulter's case furnishes an illustration. It is from the common law doctrine of recouper that our legislative provisions for "pleading discount," Acts of Ass. 1654, ch. 23, and 1785, ch. 46, s. 7, and the English statutes of set-off, about half a century later, have been derived. Stat. 5 Anne, ch. 17, s. 11. 2 Geo. II, ch. 22. Just. Inst. l. 4, tit. 6, s. 30. They all rest upon precisely the same principles. The object is to prevent cross actions, or as the books express it, circuity of action, to allow the opposing claims of the same parties to be settled in one action, which must otherwise necessarily give rise to two actions; but however reasonable and desirable it may be thus to put an end to two subjects of litigation in one and the same suit, yet as it appears from Coulter's case no man shall be allowed to obtain this advantage by his own wrong; and therefore it is that an executor of his own wrong will not be allowed to recoupe and [**70]  retain.

Apart from the doctrine of recouper, every claim must have a fair, legal, or equitable basis, whether presented to the court as the cause of an original action, or by way of recouper, discount or set-off. The claim for rents and profits, and the opposing claim for improvements, each of them rests upon principles of law and equity that are wholly separate and distinct. Whether or not the proprietor shall recover rents and profits must, in each case, depend upon the justice and equity with which he sustains his claim. If he has for an unreasonable time slept upon his rights, and there should appear to be any suspicious circumstances about his case, or any discoverable infirmity in it, the court will lessen or reject the claim altogether. So on the other hand, he who presents a claim for ameliorations, must in like manner show that it is sustainable on its own independent, substantial, and fair principles of equity; as it stands exhibited before the court, it must appear in all respects unsullied by wrong or deception; it must have no taint of fraud about it; if it has it cannot be allowed.

Such claims as these for rents and profits, and for ameliorations, may very often [**71]  present themselves in a court of equity in opposition to each other; and be set up by litigating parties by way of recouper, discount or set-off, the one against the other. But if, as in the case of an executor de son tort, a man shall not be permitted to take advantage of his own wrong, even so far as to place himself in a situation to recoupe a just and equitable claim, most certainly the law would not endure a wrong doer to oppose a fair claim in any degree whatever, by one which had originated in, and was wholly founded in his own wrong. Hence it is that a mala fide possessor can in no case, nor under any circumstances, be allowed any thing for improvements, either beyond or even to the amount of the rents and profits. A different rule, as has been justly observed, would place it in the power of the wrongful possessor to improve the right owner out of his estate. Yet it is said that where the sums are large, the peculiar circumstances of the case may influence the court in directing the account to be taken from the filing of the bill only, and not from the time of taking possession. Sugd. 526.

Now how stands the case under consideration in reference to this claim for improvements?  [**72]  The bill charges that Rogers conveyed the property in question to Strike for the purpose of avoiding the payment of Rogers' creditors; Strike answers and denies the charge, and avers that the conveyances to him were absolute, fair, and for a valuable consideration, and that he is the bona fide purchaser and holder of the property. But the court, by the decree of March 1822, has declared those conveyances to be null and void as against the complainants, and directed the property to be sold for their benefit. Hence it clearly appears, that Strike now stands before this court convicted and condemned as a fraudulent and mala fide purchaser and holder of the property. He, one of the very contrivers, and a party to the fraud, claims an allowance for improvements on the property so obtained and held. Such a claim, it is believed, was never sanctioned by a court of justice in any country, or at any time. According to all law, and every principle of equity, this claim for improvements of every description, must be totally and absolutely rejected.

Strike's claim for repairs and improvements have been thus disposed of on general principles. But it is alleged he has another and special foundation [**73]  for his claim for amelioration, and advances, under the concluding sentence of the decree of March 1822. But that decree has declared the deeds from Rogers to Strike "null and void as against the complainants;" it has retained them as a security for nothing, and in no respect whatever. The several parts of that decree must be made to harmonize one with another. Those deeds which have been so totally annulled as against the complainants, cannot, therefore, consistently with that decree, be allowed to stand as mortgages against them, to secure to Strike either the amount of the improvements, or the advances in money he has made to Rogers. Upon that ground Strike cannot stand, because it is completely covered by the decree. This being the decided opinion of the chancellor, he might deem it unnecessary to notice that class of cases which speak of allowances for improvements and advances made by actual mortgagees, or by those pseudo purchasers of young heirs and others, whose conveyances are allowed by special favour to stand and be considered as of the nature of mere mortgages. Yet from the manner in which those cases have been pressed forward, some further reasons, showing why they are [**74]  inapplicable to this case, may be expected.

In this case it must be distinctly and constantly recollected, that Strike now claims reimbursement for his improvements and advances, not of Rogers, but out of the proceeds of the property in question, and against the creditors of Rogers, who are here as the complainants. All those cases of mortgages and pseudo purchases, are governed alike by the same principles of equity. A separate examination of each of them will therefore be entirely unnecessary.

In all, the bill is brought by the grantor against the grantee, or between parties who stand precisely in that relation to each other, to redeem the mortgaged property, or to set aside a conveyance which has been improperly or fraudulently obtained. And on the case being made out by the proofs, the tribunal has uniformly answered to him who asked the relief, "you must do equity before you shall obtain equity. It is true you have been imposed upon and defrauded--but it is no less true that you have been partially and in some degree benefited; you have received money from your opponent; he has permanently enhanced the value of your estate; refund the money you have received, pay for [**75]  the increased value of your estate, and it shall be restored to you; the conveyances of which you complain shall be annulled, until then they shall stand as a security for those improvements and advances." Such is the language of the chancellor in those cases where he acts under the influence of the maxim, that he who asks equity must do equity; and this maxim is sanctioned and illustrated by an almost endless variety of cases to be found in the books.

But the application of this maxim in these cases, and for the most part, depends not only upon the immediate relationship between the parties of grantor and grantee, but also almost always upon the vendees being brought before the court by the vendor; that is, the contracting party injured as plaintiff, against the party injuring as defendant. A few examples will sufficiently illustrate this position: The plaintiff came to be relieved against the penalty of a bond; the ground of equity was established by the proofs, and the relief was decreed, but not without the payment of principal and interest, even although it exceeded the penalty of the bond. Fran. Max. 4, (note.) 2 Ev. Poth. Ob. 89. But where lands were devised for the payment [**76]  of debts, and there was a bond debt, the interest of which had outran the penalty, yet the creditor, on a bill filed by him, was allowed to recover no more than the penalty. In the first case the creditor was sustained by this maxim of equity--in the second, his case rested barely on his own contract. Again, the plaintiff for ninety pounds lent, fraudulently obtained a bond for eight hundred pounds, on which he obtained a judgment, and the object of the bill was to have certain lands subjected to the plaintiff's satisfaction in equity. But the court would not give him any relief, not so much as for the principal he had really lent, and dismissed his bill. If however the defendant in this case had come in to set aside the judgment for fraud, equity would have obliged him to pay the ninety pounds really lent. This case is also illustrative of another maxim, that he who has committed iniquity shall not have equity. Fran. Max. 8.

Now in order to bring these cases, and the principle they illustrate, fully to bear upon the case under consideration, it must appear, that the complainants not only claim under Rogers, but that they stand here in all respects as he would have stood; and [**77]  that they ask to have these deeds vacated upon the same grounds that he could have made a similar prayer. But the case now before the court is of a totally different nature. Rogers himself is here as a defendant, charged as a particeps fraudis, and relief is prayed by these complainants against him as well as against Strike. The present creditors do certainly claim this property under Rogers; and it is also true that they can only take it, subject to all fair, legal and equitable liens with which Rogers may have incumbered it, antecedent and superior to their claims. But as against Strike these plaintiffs are to be considered as purchasers of the most favoured and meritorious class, holding by a prior and superior title. The improvements and the advances for the ground rent, the Prattstreet assessment, and the taxes alleged to have been made and paid by Strike, give him no lien upon the property itself against the rightful owner, either Rogers, these creditors, or any one else. But if Rogers had come here to be relieved against the fraud practised on him by Strike, and to have the property restored to him, the court would have granted him relief only upon condition of his reimbursing [**78]  Strike for all his improvements and advances, because they enured to the use and benefit of Rogers. But no equitable principle of that sort can be urged against the complainants. They are here as creditors, praying to be relieved against a fraud contrived between Rogers and Strike.

But admitting all this. It is alleged, that, independently of the vacated deeds and of the decree, Strike has a claim, as a kind of salvor of this property, which ought to be allowed. It is said he has saved it from the hands of the ground landlord, by paying the ground rent; he has saved it from the grasp of the Pratt-street commissioners, by paying the assessment levied upon it; and he has saved it from the power of the state, by paying the taxes. He maintains that he has a right to assume the place and to be substituted for those claimants, and he founds this claim upon the doctrine of substitution. But Strike, as regards these complainants, was an uninvited officious mala fide meddler with property which he knew did not belong to him, and which he was apprised ought to be liable to the claims of Rogers' creditors. He made these advances to serve himself, not for the benefit of these complainants;  [**79]  and if he had an intention that these advances should enure to the personal benefit of any one, it must have been to Rogers; because it was from him he took the estate; and if the conveyances were to be annulled it was only against him he could seek reimbursement. Prin. Eq. 134. Strike, therefore, cannot have, against these complainants, any shadow of countervailing equity on which to rest his claim for these advances, out of the proceeds directed to be brought into court.

Having discussed the liabilities and pretensions of the defendants, let us now consider the interests of the complainants among themselves. This is what is commonly called a creditor's bill; and where two or more creditors bring such a bill, or others come in afterwards, the adjustment of their rights and interests, in relation to each other, and the objections which the defendants may make against those who have come in after the institution of the suit, most generally remain to be considered and decided when the court is called on to make a distribution of the fund. The claim of the plaintiffs has, as we have seen, to a certain extent, been settled and determined by the decree of March 1822--and therefore,  [**80]  their claim is not now to be reconsidered and reinvestigated.

It has been objected that the bill does not, as it ought, allege that the complainants sue as well for the benefit of other creditors, as for themselves. It is often a matter of some perplexity to determine who ought to be made parties, the rule being laid down in general terms, that all who are interested in the decree should be made parties. This decree virtually recognizes this as one of those cases in which all the other creditors of the debtor, against whom, or whose estate the suit is brought, may come in either before or after the decree, or at any time before the assets have been distributed, and claim a proportionable share of them. And supposing the bill had alleged that the originally suing creditors sued as well for others as for themselves, it is said that the right of such others to come in could not now have been questioned. In England it seems to be an established rule in cases of this kind, that the bill should distinctly allege that the complainant institutes the suit, as well for the benefit of all others who may thereafter come in, as of himself. In this state such a qui tam allegation in bills of [**81]  this nature is very common, and is certainly very proper and useful in apprising the court, and all concerned, at once of the object and character, in which the suit is brought. But this is the first instance here in which such an objection to a bill of this kind has ever been made, so far as I have been able to learn. In this case it sufficiently appears from the whole proceedings, bill, answers, orders and decree, that this is a case in which other creditors may come in, and therefore in this instance, and in this stage of this case, I cannot say that this bill is erroneous and deficient for the want of such an allegation; and therefore in this case, the other creditors of Rogers may be permitted to come in and participate, notwithstanding there is no such allegation in this bill.

But it is objected, that those other creditors who, it is alleged, have actually come in to partake, have not presented themselves in legal and proper form, that their claims have not been sufficiently authenticated and proved, and, even if these objections were removed, that their claims are barred by the statute of limitations. These objections will be severally considered, and also the reply that [**82]  such objections can only be made by the defendants, and not, as in this instance, by a creditor or co-plaintiff.

In England it is the established practice for the other creditors, who come in after the institution of the suit, to do so by bill or petition. In this state, the practice has been less formal and strict. In some cases the creditor, who wishes to come in, has filed his petition in the suit that has been instituted, concisely stating the nature of his claim, and praying to be admitted as a co-plaintiff accordingly. But in most cases the creditor has been allowed to come in and participate, merely by filing the voucher of his claim with the register. This latter mode certainly does, in many respects, save much trouble and expense, and is the preferable one, where the creditor's claim is of small amount. On adverting to the case of Allen Quynn's estate, I find, that I had there recognized it as the established practice of the court, in cases of creditors' bills. This practice will, therefore, be adhered to in future, in all such cases. M'Mechen's Ex'rs. v Chase's Heirs, 1820, (MS.) Per Kilty, Chan.

With regard to the proof of claims brought in by other creditors,  [**83]  it has been the practice in cases of deceased person's estates, to require no higher proof than such as would induce the orphans court to allow the claim according to the testamentary system, in case it were paid by the executor or administrator, and no objections were made. Because, in such cases, there being no other mode by which the real estate of a deceased person could be subjected to the payment of his debts, generally, including those due by simple contract, but by bill or petition in chancery; and on the creditors coming here for that purpose, it being directed to be sold, (as was usually expressly declared, in the older decrees of this court,) "for the payment of the just claims of the creditors of the deceased in a due course of administration," are therefore, when such assets are brought in, this court feels itself authorised and required to act upon the same kind of proof that the orphans court acts on, in case of personal assets, and to make distribution upon the same degree of authenticity and proof; so that the creditor when his claim is submitted to a court of justice, will find the same measure in one tribunal as in another, or whether he obtained payment from one [**84]  fund or another; and I find this practice spoken of as far back as the year 1803, as then well established. Sluby's Estate, (MS.). Fladong v Winter, 19 Ves. 196. Thompson v Brown, 4 Johns. Ch. Rep. 636.

In cases of insolvency, under the acts of assembly which formerly referred such matters to the chancellor, it was the practice to consider the insolvent's schedule, or his voluntary admission, as sufficient evidence of the debt; or if the insolvent was dead then such proof as was admitted to sustain claims against deceased persons' estates. But, if the insolvent denied the debt, or there was any discrepancy between his schedule or admission and the creditor's claim, then the creditor was put to full proof. 1 Ev. Poth. Ob. 409 But the statute of limitations was never considered as an objection to the payment of a claim, either in the case of a deceased person's estate, or in the case of insolvency, unless it was specially relied upon. The case now under consideration is substantially and in truth, a case of insolvency; not, indeed, referred to the chancellor by any special act of assembly, but one which has been brought here by these proceedings, and in [**85]  due course of law, and, therefore, the assets now here will be distributed upon such principles and proof as have been applied and required in similar cases, where no objection to the claim has been made.

But, in this case, the originally suing creditors have objected, that the claims of the other creditors who have come in since the institution of the suit, are not sufficiently sustained by proof; they have also objected that those claims are barred by the statute of limitations; and their reliance on the statute of limitations, it appears, was made, and sent with the reference of the cause to the auditor. The reply to these objections, in argument, is, that they are such as can only be made by one or other, or both of the defendants; and not by a creditor or co-plaintiff.

The debtor or his heir, has so manifest an interest in the real estate which it is proposed, in cases of this sort, to subject to the payment of his debts, that there never seems to have been any difference of opinion as to his right to make such objections. Where an executor or administrator fails to make such objections or waives them; or there has been a judgment against him; still the heir or devisee [**86]  may make such objections in defence of the real assets. And where the executor and some of the heirs waives these objections; yet, any other of the heirs or devisees may alone make them in defence of the whole of the real assets, as was done in the case of Wm. Frazier's estate in this court. It seems to be conceded on all hands, that these originally suing creditors have an interest in these real assets; but, yet it is urged, that they cannot make such objections as these against the claims of their fellow creditors. This matter must be determined on practice, on principle, and on authority.

The defendants or the representatives of deceased debtors are generally from strong motives of interest, so very active in their opposition to all and each of the creditors, where opposition of any sort can be of any avail, that they rarely leave any thing to be said or done by any one else; and, hence, it would seem from the practice of the court, that they alone were the only persons who had any right to urge such objections. It is obvious, therefore, that the main current of the practice here is not likely to be very fruitful of information on this subject.

There is a class of creditors'  [**87]  bills common in England, but of rare occurrence here, which will cast light upon this matter. Bills are often brought there by one creditor in behalf of himself and others against executors to obtain payment, and to have the assets brought in and administered under the directions of the court of chancery. In such cases the executor is not bound to plead the statute of limitations; and if he does not, the creditors will have a decree, and be paid. But it is the constant course, in the master's office, to take the objections against other creditors, and to exclude from distribution, those, who, if legal objections are brought forward, cannot make their claims effectual. So, too, in cases of bankruptcy--if the bankrupt waives any objection, it may still be made by the creditors; and the reason of this is, that the creditors have a direct and manifest interest in the funds, and that it should satisfy their whole claims respectively. If each of them was not permitted to make these objections, they would be left at the mercy of those, for a full defence, who, in all cases, where the fund is not more than enough to pay all the debts, have no interest to exclude any one from partaking, to [**88]  their prejudice, in the distribution, however ill-founded his claim may be. And besides, such bills by creditors, and proceedings in chancery, are only to be considered as other modes of compelling payment; and the chancellor is understood, in the distribution, to govern himself as to legal debts by the rules of law; and as to equitable debts, by the rules of equity, regarding the claim of each creditor as a suit depending; and, hence, if the executor or bankrupt fails to object or to plead the statute of limitations, it may be made or relied upon by any of the creditors; and the validity of such objections will sometimes be directed to be tried in an issue at law. Exparte Dewdney, 15 Ves. 497. Civil Code Nap. Art. 2225. Giffard v Hort, 1 Sch. & Lef. 409.

In this state, similar principles have been held and sanctioned in the case of William Sluby's estate:--In that case, Chancellor Hanson observes, in speaking of the liability of the real estates of deceased persons to be sold for the payment of their debts, under the act of 1785, ch. 72, that "no mode is prescribed by the act for establishing the debts. It is left entirely to the chancellor's discretion.  [**89]  But, (he observes,) it is a rule to admit claims on such proof as is prescribed for, and is satisfactory to an orphans' court; and even to admit claims passed against an executor or administrator by an orphans' court, unless objected to by some person interested, viz. by a creditor of the deceased, or his executor or administrator; or by the guardian of the infant." The chancellor then goes on to speak of the manner in which such objections should be tried; and in substance declares, that he would not direct an issue at law for that purpose, but in extraordinary cases. Purnell v Comegys, 1806, per Kilty, Chan. (MS.) Edmonson, et al. v Frazier, 1822, per Johnson, Chan. (MS.) There can be no difference, in point of equity, between the case of a creditor's bill against a deceased person's estate, and a creditor's bill, as in this instance, against an insolvent's estate. Therefore, upon principle and authority it is competent for these originally suing creditors to make these objections, and to rely upon the statute of limitations, in opposition to these claims of the other creditors who have come in since the institution of this suit. But in applying the statute of limitations in such [**90]  cases, it must be with all its saving provisoes; and also subject to the resuscitating qualifications of such acknowledgments as are deemed sufficient to take a case out of the statute; of which a statement in an insolvent's schedule may be considered as one, where the claim and schedule agree. And the statute, as in other cases, must be allowed to commence its operation from the time the debt accrued; and to run on until the creditor came in, by filing his petition, or the voucher of his claim.

The plaintiffs, by their bill found their claim, against the defendants, upon contracts made with Henderson & Rogers; and the decree of March, 1822, recognizes and affirms their claims of that description; and the proofs derived from competent witnesses, will enable the auditor, in fulfilment of that decree, to refer to the notes and vouchers, to ascertain the amount, and to compute the interest thereon. But it would be altogether without precedent to allow a plaintiff to add to the amount, and to eke out his claim indefinitely, by introducing other particulars and causes of action of a different description, not mentioned or alluded to in the pleadings, or sanctioned by the decree, and [**91]  which were only noticed in the depositions of some of the witnesses; or to bring in any additional claim by a mere ex parte petition, filed after the hearing and decree.

If the plaintiffs had other claims than those mentioned in the pleadings, subsisting at time of filing their bill, which might have been included therein, they should have had their bill so amended as to have embraced them, and thereby enabled the opposite party to gainsay them if he could:--Therefore the account of the plaintiffs, with John Rogers alone, and also their claim for costs in the suit against Penelope D. Price, must both of them be rejected.

The claim of the solicitors, Murray and Rogers, which appears to have been partially sanctioned by the order of the 9th of January 1824, may be considered as somewhat in the nature of costs; and it having been placed by the auditor's report before the party's other counsel, and all concerned, and no objection having been made, it would seem now to be proper to allow it entire; and it may be so stated by the auditor.

There is no evidence derivable from any competent source going to show that the complainants ever received the money said to be due on the [**92]  bonds of a Doctor Harsnip, which were said to have been in their hands and others:--Any discount or deduction from the claim of the complainants on that account, must therefore be rejected by the auditor.

According to the established usage and practice of the court, as has been explained, there are but two modes by which other creditors can be permitted to come in and participate, in cases of this sort; they are either by petition, or by filing the vouchers of their claims. But the filing of the schedule of an insolvent debtor, certainly cannot by any strained or liberal construction of this practice, be considered as the filing of the vouchers of the claims, of all, or any of those creditors, whose names and claims are stated thereon; and laying aside the insolvent's schedule in this case, as furnishing no evidence of the intention of any creditor therein named, to come in and make a claim for any debt, which he alleged, and was ready to prove was due him, when such schedule was filed, three are but two other creditors who have made any show of coming in as other creditors of Rogers; and they are Robert Taylor, and the firm of Hollingsworth & Worthington. Taylor has filed a mere [**93]  short copy of a judgment, which he obtained in Ballimore county court against Henderson, the partner of Rogers; and Hollingsworth & Worthington merely say, that the only demand they now have against Rogers, is for twenty dollars, lent him several years ago:--But these claims are so utterly destitute of any support by proof of any sort, that they must be rejected There are then, in fact, no claims of any other creditors of the defendant Rogers, which the auditor can be allowed to state and report for confirmation.

Upon the principles before explained, Strike must be charged with the rents and profits, or full value of the property in question, from the date of the deeds from Rogers to him, to the day of the sale by the trustee. The amount, or what has been the full value during that time must be collected and ascertained by the auditor from the proofs in the cause; and, for the reasons already given, Strike's claim for repairs, improvements and advances must be totally rejected.

The practice in this state is wholly unlike that of England, in relation to exceptions to witnesses. 2 Madd. Ch. 425. Here when the commission is returned, it is opened by the chancellor or the register,  [**94]  and objections of every kind to the testimony, are taken and considered at the hearing of the cause. In this case objections have been made to the reading of the depositions of two of the witnesses, on the ground of their being interested. The proofs are all now to be sent to the auditor, upon which he is to found some of the particulars of the account he is directed to state. But he should not be suffered to make any statements derived from the testimony of incompetent witnesses or illegal evidence. Therefore these objections do not come now too late, and must be decided on for the government of the auditor.

The chancellor considers it as sufficiently apparent upon the proceedings, without going into a statement of the case, and his reasons, that John Rogers, the defendant, is an interested witness, and therefore the whole of his testimony must be set aside and totally rejected. The reading of the deposition of Alexander Irvine, has also been objected to, on the ground of his interest. It does not however sufficiently appear, that he was a creditor of Rogers and interested at the time; and therefore the objection against his testimony must be over-ruled. A paper purporting to [**95]  be the answer of Strike to a petition of the complainants filed in Baltimore county court against him, has been insisted on as applicable and furnishing evidence pertinent to this case. But from its phraseology and general tenor, it is evident, that it cannot be a part of the pleadings of this suit, and without the other proceedings to which it purports to be an answer, it cannot be evidence in this cause, and must be rejected.

With these explanations, determinations and directions, the case is referred to the auditor to state an account accordingly; and the several exceptions, as well of the plaintiffs as of the defendants, to the auditor's statements and reports heretofore made, so far as the same are inconsistent with the determinations and directions herein before given, are overruled, and so far as they may agree therewith, are sustained.

The complainants afterwards filed a petition stating that they originally employed as their counsel in this cause Henry M. Murray and Henry W. Rogers, Esq'rs. and agreed with them, in case of successful termination of this cause, by a final decree against Strike in this court, to pay them ten per cent. each, on the amount of the proceeds [**96]  of the said suit, as a compensation for their services therein, subject to a deduction of whatever moneys should be paid to them by the petitioners in the meantime, on the account of this suit; and that after the interlocutory decree was obtained, said Murray and Rogers applied to Baltimore county court to fix and allow their per centage, on the amount then received by the sale of the property in dispute, under the said decree, made by the said court while this suit was pending there, notwithstanding the intervention of any other creditors, which was allowed by the said court under the impression, as the petitioners believed, both of the said court and the said solicitors, that those gentlemen were to proceed in the said cause to a final decree as aforesaid, upon which condition alone the petitioners alleged, was the said per centage to be allowed by the agreement aforesaid. The petitioners further stated, that the said Henry M. Murray, Esq'r. soon after the order aforesaid was passed, died without proceeding further in the said cause, after the auditor's first report therein, and the petitioners have been compelled to engage Charles Mitchell as their counsel, in the place of the said [**97]  Henry M. Murray, who has attended to the same since before the auditor and in Baltimore county court, and in this honourable court; and the petitioners had alone borne all the expenses of the said suit, on the part of the complainants. Wherefore the petitioners prayed, that the same per centage in proportion to his services in this cause, may be allowed out of the said suit to the said Charles Mitchell, as was to be allowed to the said Henry M. Murray, Esq'r. if he had lived to complete the same as aforesaid, to be fixed and ascertained by this court, with reference to the services of the said Charles Mitchell, Esq'r. subject to a like deduction therefrom, of the money advanced by the complainants to him during the progress of this suit, or that this court would be pleased to prevent by any other or further order, which to this court may seem proper, any further individual burthen of the counsel fees in this cause upon the petitioners, but that the said fund may contribute thereto, as may be reasonable and proper under the agreement aforesaid, with the said Murray, Rogers and Mitchell, notwithstanding the intervention of any other creditors.

BLAND, Chancellor, (17th of April 1826.)  [**98]  The chancellor has read and considered the foregoing petition. No objection was intimated to him against the claim of Henry M. Murray until after the argument, and the chancellor was engaged in deliberating upon and maturing those directions with which this case has been lately sent to the auditor. The chancellor knows of no practice of this court, or of any analogous proceedings of the English court, which would authorise the introduction of claims of this sort into a cause, depending or about to be finally disposed of. The claim of the solicitors Rogers and Murray, he sanctioned under all the very peculiar circumstances which belonged to it, and he considers the objections to it stated in the foregoing petition as coming now too late. The claim has been acquiesced in, and could not now be reconsidered without giving H. M. Murray's representatives an opportunity of being heard, which cannot now be done. The chancellor must in all cases leave the contracts between solicitors and suitors, relative to professional services, to be settled and decided upon in like manner as all other contracts. They cannot nor ought not to be introduced into, and blended with any pending suit. Therefore [**99]  this petition must be and is hereby dismissed with costs.

The auditor of the court of chancery afterwards, on the 4th of May 1826, made his report, in which he stated that he had restated the account between the estate of John Rogers and the trustees, applying therein the proceeds of sale, to the payment of the trustees commission and expenses; the complainants' costs in Baltimore county court, costs of this audit, and the fees allowed to H. W. Rogers and H. M. Murray, Esq's. and the balance of the said proceeds then remaining to the payment of part of the complainants' claim allowed. By this account, the complainants' claim, exclusive of the allowance to

________________________________________________________________________________
their solictors, amount to	$ 8657 81	
Proceeds of sale applicable to the payment thereof	2750 80	
	
  Leaving a balance due the complainants of	$ 5907 01	
________________________________________________________________________________

as of the day of the trustees sale. He has also stated an account between Strike and the estate of John Rogers, in which he has charged Strike with the full value of the rents and profits of the property conveyed to him by Rogers, rejecting entirely Strike's claim for advances in payments of taxes, ground rents, &c. and has also charged him with [**100]  interest thereon up to the day of the trustees' sale. This account makes Strike indebted in the sum of $ 4967 68 from the day of sale; an amount more than sufficient to discharge the balance of the complainants' claims unprovided for by the former account.

To this report the defendant, Strike, excepted,

1st. For, that the auditor has rejected entirely the claim of the defendant Strike.

2d. Because Strike claims the whole proceeds of the said sales of the said property, mentioned in the trustees' report, statement and proceedings, in preference to all the other claims in the said cause; and will contend that he is so entitled.

3d. Because the auditor has charged the defendant Strike with the full value of the rents and profits of the property conveyed to him by Rogers, rejecting entirely Strike's claim; and because the said rents are charged higher than is warranted in the proof of the cause.

4th. Because the auditor should have allowed the defendant Strike, his advances in payment of taxes, ground rent, and the sum assessed for the extension of Pratt-street; which he has not done.

5th. Because the auditor should have allowed the defendant Strike, for all [**101]  permanent and necessary improvements, laid out and expended, and created on said lots; which he has not done.

6th. Because the auditor has charged the defendant Strike, with interest on the rent and profits of said property to the day of the trustees' sale, which makes Strike indebted in the sum of $ 6559.33, with further interest on $ 4967.63, from the day of sale; which he ought not to have done.

7th. Because Strike is charged with the ground rent upon the lot on Pratt-street, running to Whiskey-alley; which he ought not to have been.

8th. Because in the said account and report, an allowance is made to H. W. Rogers and Henry M. Murray, Esq. for fees; and also contains an allowance for expenses incurred by creditors at the private meetings, to consult about their private affairs.

9th. Because the said statement of account and report is erroneous in point of fact and law, and contrary to equity and right.

BLAND, Chancellor, (May 15, 1826.) "This case having been submitted upon the auditor's report, and the exceptions of Nicholas Strike thereto, without argument, the proceedings were read and considered. Wherefore, it is ordered, that the said exceptions to [**102]  the said report, made and filed by the auditor on the 4th instant, are hereby overruled; that the said report and statements of the auditor, be, and they are hereby ratified and confirmed; and that the trustees apply the proceeds accordingly, with the interest that has been or may be received. And it is further ordered, that Strike, one of the said defendants, forthwith pay unto the complainants, the sum of $ 5907 01, together with interest thereon from the fourteenth day of September, in the year 1822, until paid. And it is further ordered, that the defendant, Strike, pay unto the complainants, all costs which have not been stated and included in the said report of the auditor, to be taxed by the register."

From which said order, and also from the order of the chancellor passed in the said cause on the 10th day of April 1826, and also from the aforesaid decree, of the said county court, in the premises, the defendant, Strike, appealed to this court.  

DISPOSITION:
DECREE AFFIRMED.  

HEADNOTES:

A final decree, or a decretal order passed by the court of chancery, or the county court as a court of equity, from which an appeal might have been taken within a limited period, after the expiration of such period, in the further progress of the cause in which it was pronounced, and in the absence of any other ground of error than what the prior proceedings themselves disclosed, will be considered as conclusive upon the rights of the parties, as well in the court of original jurisdiction, in which further proceedings were necessary to carry such decree, or order, into execution, as in the appellate court to which the case was ultimately carried.

Where a cause was transmitted from Baltimore county court to the court of chancery under the act of 1824, ch. 196, the chancellor properly viewed all the proceedings as having taken place in the same tribunal.

A decretal order should be appealed from within nine months from the time of making it by the terms of the act of 1785, ch. 72, s. 27.

The enlargement of the equity jurisdiction of the county courts gave them powers concurrent with those of the court of chancery, and necessarily took with it all the laws and regulations relating to equity matters in that high tribunal.

The right of appeal from a decretal order of the court of chancery is not a permissive privilege to be exercised or not in the election of the party, and postponed at his pleasure until the final decree.

Whoever comes into the possession of an estate by fraud must account for rents and profits when the fraudulent conveyance is vacated.

Where a decree annulled certain deeds as fraudulent, and ordered the property mentioned in them to be sold, and reserved all equities as to the distribution of the proceeds for hearing on the trustee's report of the sale being filed, this reservation was held to have no view to the interest of the fraudulent grantee; and the deeds having been vacated, because they originated in a fraudulent combination to cheat creditors, were considered as void ab initio, and wholly wanting in legal fitness to stand as securities for any advances whatsoever.

If a man has acted fraudulently and is conscious of a defect in his title, and with that conviction on his mind expends a sum of money in improvements, he is not entitled to avail himself of it.

According to the course of the court of chancery, where the proceeds of property ordered to be sold for the payment of creditors, are insufficient to pay all, the interest is to be calculated only up to the day of sale. Per BLAND, Chancellor.

Where a creditor files a bill, for the purpose of subjecting the property of his debtor to the payment of his own claim, and of all others who may obtain permission to come in, and participate in the burthens and the benefits, the others are allowed to come in, at any time either before or after the decree; and it is most usual and proper, that the decree itself should command the trustee to give notice at the time of advertising the property for sale, to all creditors to bring in their vouchers. Ib.

When a bill is brought upon an equitable title, and there is a trust, and in the case of an infant, or where there has been any fraud, or in cases of dower, an account of the rents and profits will be ordered, and that from the time the title accrued until the defendant was put out of possession. Ib.

In what is commonly called a creditor's bill, and where two or more creditors bring such a bill, or others come in afterwards, the adjustment of their rights and interests in relation to each other, and the objections which the defendants may make against those who have come in after the institution of the suit, remain to be considered and decided when the court is called on to make distribution of the fund. Ib.

Other creditors than the complainants in a bill may come in, and claim payment of their debt out of the proceeds of their debtor's property, although the bill itself contains no allegation that it was originated for their benefit, and the practice of this state is to allow them to come in and participate, by merely filing the vouchers of their claims with the register. Ib.

With regard to the proof of claims brought in by other creditors, the practice is as in cases of deceased persons estates to require no higher proof than such as would induce the orphans court to allow the claim according to the testamentary system, when no objections are made. Ib.

It is competent for the originally suing creditors to rely upon the statute of limitations, in opposition to the claims of other creditors, who have come in since the institution of the suit; but in applying the statute of limitations in such cases, it must be with all its saving provisos and also subject to the resuscitatory qualifications of such acknowledgments as are deemed sufficient to take a case out of the statute. Ib.

A creditor cannot introduce other particulars and causes of action of a different description not mentioned or alluded to in his bill, after a decree, by a mere ex parte petition; if he intended to have relied on them, he should have amended his bill before decree. Ib.

The filing of the schedule of an insolvent debtor by one claiming to be a creditor, cannot be considered as filing a voucher of his claim. Ib.

When a commission from the court of chancery to take testimony, is returned, according to the practice of this state, it is opened by the chancellor, or the register, and objections of every kind to the evidence are taken and considered at the hearing of the cause. Ib. 

COUNSEL:
Winchester, for the Appellant, contended 1. That the complainants being merely simple contract creditors of Henderson and Rogers, could not file their bill in equity to set aside the deeds from Rogers to Strike,  [**103]  without having previously obtained a judgment at law. 2. That the deeds from Rogers to Strike were absolute, bona fide, and for a valuable consideration. 3. That if they are not to be considered as absolute, they are to stand as security to Strike, and he is entitled to be refunded, 1st. The amount advanced by him to Rogers, which is proved to be $ 2200, with interest. 2d. For permanent improvements on the property. 3d. For contribution paid by Strike for the opening of Pratt-street--levied on the property in question under the authority of an act of the legislature of the state. 4th. For taxes and ground rents paid by Strike.

1. The complainants could not file their bill to set aside the deeds from Rogers to Strike; and whether they have relief against the property so conveyed, or whether the relief which has been granted to them ought to have been decreed, are questions for the consideration of this court. The claim of the complainants rests on the promissory notes of Henderson and Rogers--a simple contract debt. They show a debt due by Henderson and Rogers--that Henderson is liable equally with Rogers, and should have been made a party in this case. The complainants could not [**104]  go against the individual property of Rogers until it was shown that the partnership funds of Henderson and Rogers were insufficient. The individual creditors of Rogers have a right to be paid out of the individual fund of Rogers, in preference to the creditors of Henderson and Rogers. The complainants are the creditors of Henderson and Rogers, and cannot be paid out of the private property of Rogers, until all his private creditors are satisfied their claims. A simple contract creditor cannot proceed in equity against the specific property of his debtor, until he has first resorted to a court of law to recover his claim. Colman v. Croker, 1 Ves. jr. 160, 161. Hendricks v. Robinson, 2 Johns. Ch. Rep. 283. Bennet v. Musgrove, 2 Ves. 52. This is is not a creditor's bill, and cannot be sustained for the benefit of the complainants and other creditors. It does not profess to be for the benefit of other creditors. It has neither the form nor substance of such a bill. Brinkerhoff v. Brown, 4 Johns. Ch. Rep. 671. Williams v. Brown, Ib. 482. M'Dermutt v Strong, Ib. 687.

What effect will the decree of Baltimore county court have upon the question? Is it conclusive that the complainants [**105]  had a right to sustain their bill, and the defendant precluded from an appeal from that decree? It is not final, but only interlocutory. It says that the property shall be sold, and the proceeds brought into court. There is nothing concluded by the decree; if any thing is, it is that the deeds were not absolute. The defendant had a right to appeal from the decree, if he had thought proper to do so; but he might waive that right until a final decree was passed. This he has done by the present appeal, and this court can take notice of and correct the first, and all errors committed by the courts below. Hughes's Lessee v Howard, 3 Harr. & Johns. 9.

2. The deeds are bona fide, and for a legal and valuable consideration. The bill does not profess to have the deeds set aside on account of fraud. There is no charge of fraud averred in the bill--it must be charged to give chancery jurisdiction. It is charged in the bill that the deeds were executed to shield the private property of Rogers from the payment of his debts, and the debts of Henderson and Rogers. Rogers had a right, at common law, to convey his property to any of his creditors. Our insolvent laws do not avoid such deeds. They [**106]  were executed more than twenty months before Rogers applied for the benefit of the insolvent laws. There is no fraud charged in the bill, nor is any fraud proved in the case. The witnesses differ very materially as to the value of the property. The court can draw their own inference as to the value, without relying on the testimony of the witnesses. From their testimony no conclusion is to be drawn unless an average is taken of the value deposed to by the witnesses, and this would bring the value to very near the price that Strike paid for the property.

3. If the deeds are not to stand as valid, yet they must be as a security for Strike's claim, and he is to participate in the distribution of the fund produced from a sale of the property. He should be paid all money advanced by him to Rogers, and for all money expended for repairs, improvements, &c. paid for taxes, ground rents, &c. Pow. on Cont. 143, 145. Francis's Maxims in Eq. 1 Max. 1, 4. Bill v Price, 1 Vern. 467. Zouch v. Swaine, Ib. 320. Saunders v Glass, 2 Atk. 296. Clarkson v Hanway, 2 P. Wms. 203. Barker v Vansommer, 1 Bro. Ch. Rep. 149. Earl of Ardglasse v Muschamp, 1 Vern 237. Hawes v Wyatt, 3 Bro. Ch. Rep. 156. Attorney [**107]  General v Vigor, 8 Ves. 283. Watt v Grove, 2 Sch. & Lef. 492. Carem v Johnston, Ib. 283. Sands v Codwise, 4 Johns. Rep. 536, 578. 1 Ball & Beatty, 436. Purcell v M'Namara, 14 Ves. 91.

H. W. Rogers, for the Appellees--1. The defendant, Rogers, with a view to appropriate his property for the benefit of himself and family, and to shield it from his creditors, executed the deeds to Strike, purporting to be absolute. A fictitious distress is got up; by which, and the deeds, the whole property of Rogers came into the possession of Strike, who not only acted dishonestly with regard to the creditors of Rogers, but also as to Rogers himself, and determined, by making small advances to Rogers, to defraud him.

2. Can this court travel into the decree of Baltimore county court, and look into the merits or demerits of that decree? By the act of 1807, ch. 151, no appeal in any case is allowed after three years have elapsed between the judgment or decree and the time of entering the appeal. The question then is, was it a decree or not which was passed in this case by Baltimore county court? Whether the decree was final, or only interlocutory, still the appeal should have been within three [**108]  years. Thompson v M'Kim, 6 Harr. & Johns. 302. The decree was final as to the question of right between the parties. The deeds were declared null and void, and were set aside. It is now attempted by this appeal to open that decree, having been passed more than three years before the appeal, for the purpose of letting in a technical objection--that the complainants had not proceeded at law to recover their claim, before they resorted to a court of equity. Captious objections will not be allowed. Carroll v Norwood, 4 Harr. & M'Hen. 290. The defendant should have demurred to the bill, and the complainants would then have dismissed their bill, and proceeded at law. But if the decree of Baltimore county court is open for the consideration of this court, yet it is impossible, from the testimony, for this court to decree otherwise than that the deeds were fraudulent, and therefore void. The evidence is so full and irresistible, that no other conclusion can be drawn from it. Strike's own uniform declarations are strong evidence of the fraud, and conclusive of the fact. There is no proof which can be relied on for the amount paid for the improvements made by Strike on the property. Why did [**109]  he not produce the bills, receipts, &c. This he did not do, but the vague recollection of witnesses is resorted to. A fraudulent grantee must exhibit strong evidence of his claim. Piddock v Brown, 3 P. Wms. 288. Vaughan v Lloyd, 5 Ves. 48, 49.

3. In the case of absolute fraud a court of equity will grant no relief. The case of a constructive fraud is different--as usury, &c. where the complainant must do equity before he can obtain equity. So also where there has been an inadequacy of price. If Rogers was the complainant in this case against Strike, the claim of Strike would be allowed. Sands v Codwise, 4 Johns. Rep. 536, 555, 582, 585, 598. Necessary repairs--permanent and beneficial, may be allowed for; but here none have been proved to be made which are beneficial, but merely for Strike's own personal pride--not for convenience, but for show. Rob. on Fraud. Convey. 451, (note a.) Sugd. 525, (483.) Green v Winter, 1 Johns. Ch. Rep. 26, 27, 39. Moore v Cable, Ib. 385. The deeds being void, Strike held the property in trust for the benefit of the creditors of Rogers. He had, therefore, no right to make expensive repairs, &c. on the property. He improved the property solely for [**110]  the purpose of appropriating it to his own use. A deed for one purpose cannot be set up for another or different purpose. Bridgman v Green, 2 Ves. 627. Watt v Grove, 2 Sch. & Lef. 501, 502.

Mitchell, on the same side. 1. As to the form of the bill--In Attorney-General v Whorwood, 1 Ves. 538, 539, the Lord Chancellor says, that the charging part of a bill is useless--the statement or interrogatory in the bill is the essential part. Cooper's Plead. 4, 9, 10. 2 Madd. Ch. 168. That which is in the knowledge of the party must be positively alleged. Frost v Beekman, 1 Johns. Ch. Rep. 302. 2 Madd. Ch. 168. Cooper's Plead. 5. The prayer in this bill is that the property may be sold for the benefit of the creditors of Rogers and of Rogers and Henderson. The answer of Strike denies all fraud; by which he considered it a bill charging him with fraud, and not a bill charging it as a trust. Fraud then was put in issue, although imperfectly charged in the bill. Cooper's Plead. 6, 7. Whorwood v Simpson, 2 Vern. 187. 2 Madd. Ch. 169.

Had the complainants a right to file their bill as simple contract creditors, or as creditors at all--whether as judgment creditors, or as partnership creditors?  [**111]  Their claim has been admitted by Rogers, one of the defendants. Strike, the other defendant, neither admits, nor denies.

By the act of 1825, ch. 117, unless exceptions are taken to the report of the auditor, there can be no objection made to it in this court. Here there has been no exception taken to the report of the claim of the complainants, nor to their right to participate in the fund--there can, therefore, be no objection made in this court. But it has been said that simple contract creditors cannot come into a court of equity, unless there has been a judgment, &c. at law. This is a question of jurisdiction, and should have been raised before the defendant, Strike, submitted to the jurisdiction of the court by his answer. Underhill v Van Cortlandt, 2 Johns. Ch. Rep. 369. Livingston v Livingston, 4 Johns. Ch. Rep. 290. Baugh v Price, 1 Wils. 320. Rathbone v Warren, 10 Johns. Rep. 595. Equity has concurrent jurisdiction with courts of common law in cases of fraud. Russell v Clark, 7 Cranch, 89. Taylor v Jones, 2 Atk. 600. Colt v Woollaston, 2 P. Wms. 154, 156. S. C. 2 Eq. Ca. Ab. 482. Stent v Bailis, 2 P. Wms. 220. Bayard v Hoffman, 4 Johns. Ch. Rep. 456. 1 Madd. Ch. 258.  [**112]  Earl of Chesterfield v Janssen, 2 Ves. 155. Barnesly v Powel, 1 Ves. 289. Wheeler v Bingham, 3 Atk. 366. Anonymous, 2 Desauss. 304. Sands v Codwise, 4 Johns. Rep. 536.

An act of insolvency operates as an execution on the debtor's property, for the benefit of his creditors, from the moment the insolvent applies for the relief provided by such law. Here the insolvent debtor has executed a deed to the trustee appointed according to the insolvent laws The complainants may, therefore, call on the trustee to account for his trust, and to account for the rents and profits of the property in question. Strike, as charged in the bill, is a fraudulent and colluding trustee. The creditors are cestui que trusts. They must be heard in equity. Dorant v Simpson, 4 Ves. 664, 665. Taylor v Allen, 2 Atk. 213. Newland v Champion, 1 Ves. 105. In an appellate court the party will not be turned out of court for preliminary objections. Stuart v Mechanics & Farmers Bank, 19 Johns. Rep. 506.

The defendant cannot take advantage of the complainants' right to sue, not having taken advantage of it in the court below; if it were otherwise, it would be a surprise upon the complainants. There is no question [**113]  as to the right of the complainants to the fund. The point, therefore, ought not to be argued, as it is unconnected with partnership assets. At law a creditor may levy his execution on the joint or separate property of the partners. In equity it is different, until the proper fund has been exhausted. But here there are no separate creditors of Rogers--none appear in the record. There can then be no contest as to the joint and separate property of Rogers. M'Culloh v Dashiell's adm'r. 1 Harr. & Gill, 96. The schedule returned by Rogers under his application for relief under the insolvent laws, is no evidence that there were private or other creditors. 1 Phill. Evid. 51. Creditors must come in and contribute to the costs of the suit, otherwise such as do not will be excluded. Joint creditors are entitled to come in and participate in the fund pari passu with other creditors. Tucker v Oxley, 5 Cranch, 35. Wats. on Part. 172, 243. Ex parte Elton, 3 Ves. 238. Harris v Tremenheere, 15 Ves. 35. As to how creditors may come in. Brown v Ricketts, 3 Johns. Ch. Rep. 555. Cockburn v Thompson, 16 Ves. 327, 328. Advantage of the act of limitations may be taken by one or more creditors so coming in,  [**114]  against the claims of any others. Dewdney, Ex parte, 15 Ves. 496.

Have the complainants established the fraud? This question has been settled by the decree of Baltimore county court in 1822, from which decree there has been no appeal within the time prescribed by law. The decree was pronounced upon a final hearing, the bill, answers, &c. being submitted for that purpose. It is a final decree. 2 Harr. Ch. Pr. 622. An interlocutory decree does not dispose of the matters in litigation between the parties; but this decree does. The equity reserved by the decree was as to the distribution of the fund raised by a sale of the property, among the honest and bona fide creditors. It was not for the benefit of Strike, for he had no equity. The decree was final. Ray v Law, 3 Cranch, 179. 1 Wooddison, 232 to 240. Thompson v. M'Kim, 6 Harr. & Johns. 328. Slee v. Bloom, 20 Johns. Rep. 690. M'Vickar v Wolcot, 4 Johns. Rep. 528. The act of 1785, ch. 72, s. 27, limits appeals from the court of chancery to nine months. By the act of 1763, ch. 23, s. 5, 6, the county courts had concurrent jurisdiction with the court of chancery as to certain amounts. This jurisdiction was enlarged by the acts of [**115]  1791, ch. 78, 1792, ch. 63; and the right to appeal, and the time within which such appeal was to be made, is the same as given under the act of 1785, ch. 72. By the act of 1807, ch. 151, appeals from the decrees of county courts are limited to three years. The decree in this case was passed by Baltimore county court on the 28th of May 1822, and the appeal was not made until the 29th of May 1826. It is clear, therefore, that not more of the case is before this court than that part upon which the statute limiting appeals does not operate. It is possible that the decree might have been opened by a bill of review, but not otherwise. Lashley v Hogg, 11 Ves. 602. Taylor v Popham, 15 Ves. 76. Charman v Charman, 16 Ves. 115. Waldo v Galey, Ib. 214. 2 Madd. Ch. 454, 457, 459, 464, 466. Earl of Darlington v Pulteney, 3 Ves. 386. Lawrence v Cornell, 4 Johns. Ch. Rep. 545. What does the appeal from the court of chancery open in this case? It does not open what the chancellor considered, and what was finally acted upon before the proceedings were transferred to his court. It does not open the question of fraud; but only what was done by the chancellor. What equity was there reserved by the decree [**116]  of 1822, and what can now be enforced? What is the equity which Strike, by his answer, shows he is entitled to? He knew of his defective title to the property, and should not have improved it; and this he should not have done independent of the fraud. A tenant for years shall not improve the property so as to prolong his possession in order to enjoy his improvements, until he is reimbursed. Equity will not relieve him by reimbursing him for the improvements. 1 Madd. Ch. 263. Moore v Cable, 1 Johns. Ch. Rep. 385. Cootes Law of Mortg. 66, 127, 353, 392, 561. Hardy v Reeves, 4 Ves. 471. The defendant, Strike, cannot be allowed for money paid on account of the opening of Pratt-street, and paid for taxes, &c. Hardwicke v Vernon, 4 Ves. 418. Bennett v Musgrove, 2 Ves. 52. How v Weldon, Ib. 517. Strike has no right to claim for advances of money made to Rogers after the deeds, for he says in his answer that he did not so advance. He would have no right if he had advanced to come in for subsequent advances in preference to bona fide creditors. Jones v Smith, 2 Ves. jr. 376. Colman v Sarel, 3 Bro. Ch. Rep. 12. Anonymous, 2 Ves. 662. Baugh v Price, 1 Wils. 320. There are three class of cases [**117]  where relief will be granted upon the party's doing equity, as in How v Weldon, 2 Ves. 517. Taylour v Rochford, Ib. 282. Smith v Loader, Prec. in Ch. 80. Barnardiston v Lingood, 2 Atk. 133. Gwynne v Heaton, 1 Bro. Ch. Rep. 1. Pickett v Loggon, 14 Ves. 233. Huguenin v Baseley, Ib. 273. Whorwood v Simpson, 2 Vern. 186, 187. 1 Madd. Ch. 261. But where a deed is set aside for fraud, nothing passed to the grantee therein; and such a deed does not stand as a security for any thing. Bennet v Musgrove, 2 Ves. 52. Sands v Codwise, 4 Johns. Rep. 598. Boyd v Dunlap, 1 Johns. Ch. Rep. 482. Sands v Hildreth, 12 Johns. Rep. 494. S. C. 14 Johns. Rep. 497. Here Strike having no valid deed or title, the deed which he had being fraudulent, erects buildings on the property, belonging to another person--Can he claim to be paid for such buildings, either at law or in equity? He knew he was a fraudulent grantee, and that his deed was void; yet notwithstanding he chose to improve the property; and now has the impudence to ask to be reimbursed for such improvements. There are cases where a deed may be set aside on terms; and where the party may be allowed to redeem on payment of the consideration--as in Herne [**118]  v Meeres, 1 Vern. 465. Boyd v Dunlap, 1 Johns. Ch. Rep. 482. Murray v Riggs, 15 Johns. Rep. 587. Smith v Loader, Prec. in Ch. 80. Chapman v Tanner, 1 Vern. 267. But Strike's claim, if admissible under any aspect of the case, now comes too late. The Santa Maria case, 10 Wheat. 431.

Magruder, on the same side. The general rule in equity is, that all persons having an interest in the subject matter, must be made parties; but there is an exception in favour of creditors, who may come into court at any time before the fund is distributed. Strike has no right to urge the rejection of the claims of the other creditors, because he is to be benefited by such rejection. But it has been said that the bill does not charge that the deeds were fraudulently obtained. If the facts in a bill are all stated, showing that there had been a fraud, it need not be stated that they had been obtained by fraud. Jones v Slubey, 5 Harr. & Johns. 372. Farrow v Teackle, 4 Harr. & Johns. 271.

Again, it has been insisted that a simple contract creditor must first resort to a court of law to obtain his claim; and if he cannot succeed there, then he may go into chancery to affect any property liable for the [**119]  debt. Why drive a claimant first to law? Why not let him proceed immediately in equity? The books are full of cases where a creditor may go into chancery for himself and other creditors to obtain their claims. Fraud is equally cognizable at law as in equity, except in the case of a fraudulent will. A court of equity has jurisdiction of simple contract debts; and can bring all the parties interested as creditors, before the court, to participate in the funds in case payment is decreed. By the act of 1794, ch. 60, s. 10, the court of chancery may decree the sale of equitable estates for the payment of debts; and this power has been constantly exercised as well in this as in other states in the union. But here the debtor had applied for the benefit of the insolvent laws, and this of itself gave the complainants a right to proceed in equity. Strike, by his answer, put in issue the fraud in obtaining the deeds.

Again, it has been said that the deeds were bona fide, and for a valuable consideration. This is expressly negatived by the testimony, which is full and ample to establish that the deeds were fraudulently obtained.

Can the decree of 1822 be examined by this court on the [**120]  present appeal? What followed that decree was no more than an execution of it--similar to an execution on a judgment at law. After the sale by the trustees, that decree was satisfied. Thompson v Brown, 4 Johns. Ch. Rep. 631. Matters of form are dispensed with, but matters of substance are required. Moore v White, 4 Harr. & Johns. 549. The attempt on this appeal is to reverse a decree which has been executed. If this were permitted, so long as a final distribution is incomplete, the party may appeal from the decree which may have passed twenty years before.

Is Strike entitled to be refunded any money which he may have paid, no matter for what purpose? There is no question whether the defendant, Strike, should be entitled to have his account stated, there being no objections made to it. Nor is there any whether or not the complainants are creditors of Rogers. Their claim has not been disputed. This court will not, therefore, notice any exceptions or objections now made, unless they were also made in the court below. There is no proof that Strike advanced any money to Rogers, either before or after the deeds; but certainly none that he advanced any money before the deeds. The question [**121]  is, whether any allowance should be made to Strike for improvements under the circumstances of the case? We think no allowance ought to be made to him. Moore v Cable, 1 Johns. Ch. Rep. 385. Bostock v Blakeney, 2 Bro. Ch. Rep. 653.

The answer of Rogers is evidence against, but not in favour of Strike, who claims under Rogers. Field v Holland, 6 Cranch, 25. Phill. Evid. 265, 266. Bridgman v Green, 2 Ves. 629.

Wirt, (Attorney General of U. S.) in reply. This suit is in fact the suit of Rogers, though brought by M'Donald and Son, as complaining creditors. It was a fraud upon the court in moving that Rogers should have himself examined as a witness. He swears that he considers this his suit--there was a combination between M'Donald and Rogers as to the manner of bringing the suit--the payment of the expenses thereof, &c. Here the complainants, and one of the defendants, combine together to cheat the other defendant. Rogers must be considered the complainant, and the same rules of law are to be applied to him as if he was the complainant on record. The essential plaintiff in a cause is he who conducts the suit and pays the costs.

What part of the proceedings are now to be [**122]  considered by this court? Can the court look into the decree of 1822? It has been contended, on the other side, that this court cannot, there being no appeal in time. The chancellor considered himself the very court by whom the decree was pronounced, and he would not disturb it. Does the act of assembly limiting appeals, apply to final decrees only, and to discretionary appeals from decretal orders or interlocutory decrees? The decree of 1822 must be considered as justifying an appeal from it if the party choose to appeal; but the party was not bound to appeal then, but might wait the final decree to be made, before he appealed. It is a privilege given to the party to appeal or not, until a final decree is pronounced. On an appeal from a final decree, the appellate court goes back to all interlocutory orders or decrees which took place in the action. It is the policy of the court to discountenance so many appeals, when one would answer every purpose. It would otherwise be making one case the mother of many appeals. Thompson v M'Kim, 6 Harr. & Johns. 302 Snowden v Dorsey, Ib. 114. It is often difficult to draw the line where the appeal may be made, and where it should not. The party [**123]  must appeal to ascertain whether or not it was a case proper for an appeal. Should he not appeal, he might be precluded, at the time of the final decree, from showing that the interlocutory decree should not have passed. All this may be easily obviated by permitting the party to wait the event of the suit, and then appeal from all that had taken place, and urge any errors apparent on the record. Atkinson v Manks, 1 Cowan's Rep. 702. Norwood v Norwood, 2 Harr. & Johns. 241. But it has been said that the decree of 1822 was a final decree. How can it be said to be final when it does not put an end to the suit, or the cause off the docket? The decree of 1822 did nothing more than annul the deeds, and direct a sale of the premises. Nothing is said about the allowance, &c. if any, to be made to Strike. These were questions belonging to the cause. As to what is a final decree the court are referred to Hind's Ch. Pr. 429. Aldridge v Giles, 3 Hen. & Munf. 136. 3 Tucker's Blk. 423. President, &c. of William & Mary College v Lee, 2 Hen. & Munf. 558. (note). M'Call v Peachy, 1 Call's Rep. 55. Goodwin v Miller, 2 Munf. 42. Chapman v Armistead, 4 Munf. 382. Paynes v Coles, 1 Munf 373. The act limiting [**124]  the time of appealing runs from the time of the final decree, and not from any interlocutory order or decree.

It has been said that we cannot object to any thing which is waived by the answer. If the bill does not on the face of it, make out a case, the court will not sustain it. It requires neither a plea nor demurrer to a bill, where it does not make a proper case of itself. If the court discover that all the proper parties are not before the court, they will not decide the case. Here the claim of the complainants is against Henderson and Rogers, and the bill is against Rogers individually. Henderson should have been made a party. The complainants could not single out either Henderson or Rogers. At law the want of proper parties must be pleaded, but in equity it need not.

The complainants are simple contract creditors, who have no judgment at law, but taking the first step in a court of equity for recovering their claim against the debtor's land. Has a court of equity jurisdiction of the case? The cases cited on the other side are all cases of collusion, fraud, &c. It is not too late now to object to the jurisdiction of a court of equity in this case. Wheeler & M'Attee [**125]  v Johnson, decided at the present term. Pollard v Patterson, 3 Hen. & Munf. 67. A creditor must ascertain his claim at law before he can go into equity, if fraud stands in the way of his getting his debt paid.

There is no case of fraud either by the bill, or proof sufficient to justify the decree. The bill must allege that the complainants are defrauded by the deeds they seek to annul. Here the bill does not allege the deeds to be fraudulent conveyances. It is an equivocal bill. Suppose the bill is free from all exceptions, does the evidence make out a case of fraud against Strike. The answer, testimony and declarations of Rogers are not evidence against Strike, and if stricken from the case as not evidence, there is nothing left of a shadow of fraud. The answer of Strike has not been overthrown by any testimony in the cause. There are not two positive witnesses impeaching the answer. His answer is to a bill of discovery, and is entitled to greater weight than an answer in an ordinary case. The whole of Rogers's evidence, if taken into the case, does not prove fraud in Strike. Rogers being considered as plaintiff, his evidence operates against him, and cannot be used in favour [**126]  of the complainants; but Strike may use it for his benefit, if he thinks proper. Where one defendant claims under his codefendant, the answer of one is evidence against the other; but in the alleged case of turpitude it is not so. Besides here, Rogers is in fact a complainant. Rogers, in his answer, says the deeds were to shield the property from being liable for the debts of Henderson, which fell upon the firm of Henderson and Rogers. So is the evidence of three other witnesses, to whom Rogers had applied to take a deed of the property. This shows that the deeds were not intended to defraud the complainants of their debt. If the deeds were not to defraud the very creditors who go to vacate them, they are not void. It must be charged in the bill, and proved that the deeds were to defraud the complainants. The statute of 13 Elizabeth does not look to any such intention, upon which to ground a fraud in a case like this. The deeds were intended to protect the property against debts for which it was not liable. They cannot, therefore, be considered as void--not being to defraud any real creditor.

If the decree of sale be right, yet the complainants, to be entitled to equity, must [**127]  do equity before they can recover their claim. In England no relief is granted where deeds are set aside, &c. unless upon the ground of replacing the party where he was before the deeds were executed; and this, too, in cases of atrocious frauds. The case of a creditor makes no distinction. These complainants could not have relief, except upon Strike being paid for all advances, improvements, &c. At law it would be different. A plaintiff having a judgment might levy an execution on the property fraudulently conveyed, and the fraudulent grantee has no redress. But in equity it is otherwise; there the claimant must do equity in order to entitle him to obtain it. There is no distinction between a creditor complainant, and a grantor complainant, on either going into a court of equity to have a deed set aside. The fraudulent grantee must be placed in the situation he was originally. Watt v Grove, 2 Sch. & Lef. 501. Herne v Meeres, 1 Vern. 465. It has been said that there is a distinction between an absolute and constructive fraud. In the first case the fraudulent grantee has no relief, but in the latter he is to be reimbursed for all advances, &c. Are the deeds in this case absolutely fraudulent?  [**128]  As to the distinction between absolute and constructive fraud, the court are referred to Rob. on Fraud. Convey. 451, (and note a.) There is no distinction between covin and fraud; and equity never considers whether a deed be void or voidable--that is done at law. A deed cannot be set aside in part for fraud--it must be in toto. 1 Madd. Ch. 262. The meaning of this is fully explained in Middleton v Lord Kenyon, 2 Ves. jr. 408. Lawley v Hooper, 3 Atk. 281. In general, where a deed is set aside on account of fraud, it must be on terms. 1 Madd. Ch. 331. Wharton v May, 5 Ves. 69. Purcell v M'Namara, 14 Ves. 106. Pickett v Loggon, Ib. 244. As to the extent of relief in such cases, see Rob. on Fraud. Convey. 526. Sugd. 483, Barnewell v Barnewell, 3 Ridgw. P. C. 61, 66.

In Sands v Codwise, 4 Johns. Rep. 536, 555, 585, a new equity law is established in the state of New-York, different from the equity law of England. Attorney-General v Vigor, 8 Ves. 283.

Curia adv. vult.  

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

OPINIONBY:
EARLE 

OPINION:

 [*258]  EARLE, J. at this term, delivered the opinion of the Court. This cause originated on the equity side of Baltimore [**129]  county court, and was removed to the court of chancery, under the provisions of the act of 1824, ch. 196, where it received a final determination. On the 28th of May 1822, the county court expressed an opinion, that the deeds of the 16th of January 1811, from Rogers to Strike, mentioned in the proceedings, were executed for the purpose of defrauding the creditors of Rogers, and without bona fide consideration, and ordered, adjudged and decreed, that the said deeds were null and void as against the complainants; and further ordered, adjudged and decreed, that the property therein contained be sold, and that Henry W. Rogers and Samuel Moale be appointed trustees, for the purpose of making the sale. And all equities as to the distribution of the proceeds of sale, were reserved by the court for hearing, on the trustees' report, or bringing into court the money or securities arising on the sale. The auditor then stated an account, which was excepted to by 

 [*259]  both parties; but the exceptions were not acted upon before the case was transferred to the court of chancery, where it made its appearance in October 1825. It was argued at large upon its merits [**130]  at March term 1826; and on the 10th of April following, the chancellor referred it to the auditor in chancery, to state an account, having in view the explanations, determinations and directions, made and given by him; and he overruled the former auditor's statements and reports, so far as the same were inconsistent with his then determinations and directions. Pursuant to these directions of the chancellor the auditor stated and reported two accounts. One between the estate of Rogers and the trustees, and the other between Strike and the same estate. And in the last account, Strike is charged with rents and profits, to a large amount, and has received no credit or allowance for necessary and permanent improvements, taxes, ground rent, or sums assessed for the extension of Pratt-street. To this report he took many exceptions, all of which the chancellor overruled, and by his order of the 15th of May 1826, the report and statements of the auditor were ratified and confirmed; and the trustees were directed to apply the proceeds accordingly, with the interest that had been, or might be received. And the chancellor further ordered, that Strike pay to the complainants [**131]  $ 5907 01, with interest thereon from the 14th of September 1822 until paid, with the costs, not included in the report of the auditor, to be taxed by the register.
From these several decrees and orders Strike appealed to this court, and they present the subjects which are now to engage our attention.
The appeal from the decision of the county court of the 28th of May 1822, has given rise to a point in this court, that could not have arisen before the chancellor. It has been made a question, whether that appeal was taken within the time prescribed by the acts of assembly. It was taken on the 29th of May 1826, and when more than three years had elapsed from the time of making the decision. For Strike it was strenuously argued, that it was not a final decree, and therefore not within the operation of the act of 1807, ch. 151; while his opponents' counsel as warmly urged it to be a final and conclusive judgment, 

 [*260]  and that if considered a decretal order only, the appeal was equally barred by length of time.
Our examination of this point has been anxious and diligent, and it has conducted us to the conclusion, that it is unnecessary to determine on the nature of [**132]  the decision; for whether it is a final decree, or only a decretal order, the appeal from it appears to have come too late. If viewed as a decretal order of Baltimore county court, it should have been appealed from within nine months from the time of making it, by the terms of the act of 1785, ch. 72, s. 27. This act was passed long before the enlargement of the equity jurisdiction of the county courts; but when that jurisdiction, within the legitimate sphere of its operation, was made concurrent and co-extensive with the powers of the court of chancery, it necessarily took with it all the laws and regulations relating to equity matters in that high tribunal, and among others, it carried with it all the provisions of this act of assembly. It must then be considered on a footing with a decretal order in the court of chancery, which is to be appealed from within nine months from the time of making it. This is not a permissive privilege, as was said in argument, to be exercised or not in the election of the party, and to be postponed at his pleasure until the final decree. The law is imperative, and the alleged error; if insisted on, must be appealed from within nine months [**133]  from the time of making the order, and not afterwards.
The phraseology of the act is too plain to be mistaken, and whatever inconveniencies in practice our construction of it may produce, it is conceived it can be made to bear no other. With all our research we have been unable to light upon a case where our courts have given to the act a more convenient interpretation; and we confess we should have been much relieved, if such an adjudication could have been found to have been made by them. We would willingly have taken it for our guide, and made it the foundation of our judgment. But in the absence of an adjudged case, we feel that we are bound to construe the act agreeably to its language; and it in terms is, that the appeal be made within nine months from the time of making the decision appealed from, and not afterwards.
The disposition thus made of the question on the time of the 

 [*261]  appeal, makes it unnecessary to examine into several points discussed before us. They were suggested by the proceedings anterior to the decision of the 28th of May 1822, and in strictness were improperly brought into the argument. Excluding them from our consideration, it only remains for [**134]  us to express in general terms our entire approbation of the steps pursued by the chancellor in the case, after it was transferred to his court. He very properly viewed all the proceedings as having taken place in the same tribunal, and treating the decree of May 1822 as a final decree, he went on to settle and complete what it left undetermined. The complainants' bill prayed that the defendants might be made to account for rents and profits; and on the 10th of April 1826, he referred the case to the auditor to state an account, including rents and profits, with other matters in the cause. In this he was clearly right. The decree had established the fraudulent conduct of the defendants, and vacated the deeds from the one to the other; and surely if Strike's possession of the property conveyed commenced in fraud, his continuation of that possession partook no less of the same illicit character; and it may be well received as a settled principle of equity, that whosoever comes into the possession of an estate by fraud, must account for rents and profits, when the fraudulent conveyance is vacated and set aside.
The further directions of the chancellor to reject from the account allowances [**135]  for advances and improvements made by Strike, we think also perfectly correct. The reserved equities of the decree had no view to the interest of Strike; and the deeds having been annulled, because they originated in a fraudulent combination to cheat the creditors of Rogers, they are to be considered void ab initio, and wholly wanting in legal fitness to stand as securities for any advances whatsoever. They have, in truth, no lawful existence; and to use the words of an eminent civilian, "it would be inconsistent and absurd to recognize them for any lawful purpose." The quoted passage of Sugd. 525, furnishes a sound practical rule for rejecting claims for improvements, where the transaction is tainted with fraud. It is expressed nearly in these words: If a man has acted fraudulently, and is conscious of a defect in his title, and with that conviction 

 [*262]  on his mind, expends a sum of money in improvements, he is not entitled to avail himself of it. Its just application to Strike's situation is too obvious to be enlarged upon. His deeds from Rogers were grossly fraudulent in fact, being made under corrupt motives to cheat, and his improvements were [**136]  made soon after, while his conscience was broad awake to his title, and his mind probably engaged in contrivances to escape detection.
The chancellor's last order of the 15th of May 1826, ratified the auditor's statements and report, made in conformity to his directions, and by it Strike's numerous exceptions were properly overruled.
DECREE AFFIRMED.  

29 of 44 DOCUMENTS 

CAUSTEN vs. BURKE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

2 H. & G. 295; 1828 Md. LEXIS 24 

June, 1828, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court. Assumpsit for work and labour, care and diligence; for goods sold and delivered; for money lent and advanced; for money had and received, and for money paid, laid out and expended. The defendant, (now appellee,) pleaded non assumpsit, and issue was joined.

1. At the trial the plaintiff, (the appellant,) prayed the court to direct the jury that if they believed from the evidence in this cause, that the defendant and others, did agree to pay to the plaintiff the sum of $ 500, as a compensation for his extra services, in going to the South to attend to the security of certain property there, belonging to them and the plaintiff, and that the same was to have been paid by them without any contribubution to said fund on his part, and that he did go and attend, &c. that then the plaintiff is entitled to recover. Which direction the Court, [Archer, Ch. J. and Hanson, A. J.] refused to give; but instructed the jury that there was no evidence to go to the jury to establish the fact, that the agreement was with them individually. The plaintiff excepted.

2. The plaintiff to support the issue on his part, offered in evidence to the jury, by Thomas [**2]  S. Schoolfield, that the plaintiff in this cause was associated with the defendant and several others, in the city of Baltimore, in business not rendering it the duty of any of them to leave the city; that the concern had property in Savannah, Amelia Island, and elsewhere, to the south; that at a meeting at Laborde's, the defendant, the witness, and several others of the concern, were present, one of whom proposed they should employ the present plaintiff to go to the South after said property belonging to said concern, of which the plaintiff was a member; that it was agreed to by the persons present, and the witness sent after the plaintiff, who was not present, but who afterwards attended--that it was then proposed to the plaintiff, to go to the South after said property, and Laborde, the defendant, and the others of said concern, offered to give him $ 500, as a compensation for his services, if he would go, to which the plaintiff acceded, and did go, and was absent on said business, witness believes, three or four months; that nothing was said at the time about paying the plaintiff out of the joint funds of the concern, or that such fund was to be charged therewith; nothing was said [**3]  about the other members of the concern being exclusively liable. The defendant then prayed the court to direct the jury, that upon this evidence the plaintiff was not entitled to recover. Which opinion and direction the court gave. The plaintiff excepted; and the verdict and judgment being against him, he appealed to this court.  

DISPOSITION:
Affirmed.  

HEADNOTES:

One partner cannot maintain an action against his co-partners, for work and labour done on account of the partnership.

Where the plaintiff was associated with the defendant and others, in a particular concern not rendering it the duty of any of them to leave their place of residence, and at a meeting of the association, when the plaintiff was not present, it was proposed to employ him, to go to a distant place, to look after the property of the concern; the plaintiff was then sent for, accepted the employment for a fixed compensation, performed the services required, and brought an action of assumpsit against one of the partners to recover the sum agreed to be paid him. The party sued pleaded the general issue. This agreement was held to be an undertaking on account of the concern; that the same engagement entered into with a stranger, would have been binding on the firm; and that the plaintiff as a member of that firm, must have contributed his proportionate part of the sum contracted to be paid, and, therefore, could not sustain his action.

With respect to debts for work and labour, or other personal services, it is a rule that however special the agreement was, yet if it was not under seal, and the terms of it have been performed on the plaintiff's part, and the remuneration was to be in money, it is not necessary to declare specially, and the common indebitatus count is sufficient--Per STEPHEN, Judge.  

COUNSEL:
Mayer, for the Appellant. 1. As there is no evidence stated in the first bill of exceptions, that exception must be abandoned.

2. Upon the evidence set forth in the second bill of exceptions, the plaintiff below was entitled to recover; for although the defendant and plaintiff were with others associated in business, in relation to which the plaintiff performed the service mentioned in this exception; yet the said service was not performed by him as a partner, and the claim for it did not enter into the partnership accounts. One partner contracting with his copartner is to be considered as a stranger with respect to his other partner. Bradford v Kimberly, 3 Johns. Ch. Rep. 433. The defendant cannot take advantage of his being sued alone, not having pleaded in abatement. Van Ness v Forrest, 8 Cranch, 30.

Meredith, for the Appellee.  [**4]  1. The first bill of exceptions is unaccompanied by any statement of the evidence. It cannot be connected with the second bill of exceptions, in which the evidence is set out. It is, therefore, wholly out of the case.

2. The evidence stated in the second bill of exceptions establishes a partnership.

3. One partner cannot maintain an action against his copartner for work and labour performed, or money expended on account of the partnership. In taking care of the joint property, a joint owner is taking care of his own interest. Each partner is bound, by the nature of his contract, to devote his whole time and attention to the partnership concern. The services of the several partners may in point of fact be unequal, but the law does not undertake to measure them, and therefore, will not compensate them. Holmes v Higgins, 1 Barn. & Cress. 74, (8 Serg. & Lowb. 27.)

4. Where there is a special agreement for one partner to receive an extra compensation, if such compensation is not paid, his remedy is in chancery. Claims arising out of a partnership, as between the partners themselves, during its continuance, are cognizable alone in a court of equity. The reason is, that the [**5]  mode of administering justice in courts of equity--the mode of proof--the mode of trial, and the mode of relief, are found far better calculated for the adjustment of differences of this description, than the remedies afforded by the nature of proceedings at law. It may, therefore, be considered as an established rule, that until dissolution, and an account liquidated by the partners, indebitatus assumpsit will not lie. Smith v Barrow, 2 T. R. 476. Harvey v Crickett, 5 Maul. & Selw. 340. Lamatere v Caze, 1 Wash. C. C. Rep. 436. Murray v Bogart, 14 Johns. Rep. 318. Whether the plaintiff is entitled to receive these $ 500, depends upon the state of the partnership accounts. Giving him credit for the $ 500, he may still be indebted, on a final settlement, in a much larger amount. Although such may be the fact, the defendant is precluded from showing it. A plea of set-off would necessarily lead to an investigation of partnership accounts utterly unfit for a court of law. And the consequence would be, that the defendant would be turned round to his remedy in equity, which would be manifestly unjust. The case of Bradford v Kimberly, 3 Johns. Ch. Rep. 433, cited by the appellant's counsel,  [**6]  and Franklin v Robinson, 1 Johns. Ch. Rep. 157, are the only cases in which a partner has been held entitled to compensation for extra services, and they were both cases in chancery, where the partners were at liberty to investigate the whole accounts, and protected from being compelled to pay, if the balance was on the whole against the claimant partner.

5. But if the plaintiff has a remedy at law, he ought to have declared, not in general indebitatus assumpsit, but on that which alone gave him the right of action--the special agreement. The rule formerly was, that where there was a special agreement, the party could not declare upon a general indebitatus assumpsit. But it is now a general rule, that where the agreement is executed, the general form of declaring is sufficient. But then the plaintiff's right of recovery must be independent of the special agreement; that is, he must have a right to recover, supposing no special agreement to have been made. If his right of action depends alone on the existence of such an agreement, he must declare upon it. Payne v Bacomb, 2 Dougl. 651. Tuttle v Mayo, 7 Johns. Rep. 132. Cooke v Munstone, 4 Bos. & Pull. 355. Now in this case if the [**7]  plaintiff is entitled to recover at all, it can only be in virtue of the special agreement. The case, therefore, is completely within the exception.

Mayer, in reply. It is sufficient to show where there is a special agreement, that the services were performed, in order to enable the party to recover. 1 Chitty's Plead. 329, (339.) If there had been no special agreement in this case, the plaintiff might recover. It was for services out of the ordinary business of the concern, which the plaintiff performed.

Curia adv. vult.  

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

OPINIONBY:
BUCHANAN 

OPINION:

 [*299]  BUCHANAN, Ch. J. at this term, delivered the opinion of the court. The first bill of exceptions being properly abandoned by the counsel for the appellant, it is considered as out of the case.
The question arising on the second bill of exceptions, is a question of construction.
The plaintiff and defendant, with several others, were associated together in business--they were partners in trade. If the contract, which gave rise to this action, was entered into by such of the members of the concern as were present,  [**8]  in their individual characters--if it was a personal contract, then the plaintiff, under the pleadings in the cause, would be entitled to recover; as there is nothing to prevent one partner from suing another on a mere private undertaking. But if the undertaking by the defendant, and the other partners present, was not merely personal, but on account of the copartnership, the plaintiff is not entitled to recover, on the general principle, that one partner cannot maintain an action against his copartners, 

 [*300]  for work and labour done, &c. on account of the partnership.
And we think, that the engagement by the defendant and the others of the concern who were present, to give the plaintiff $ 500 for going abroad on the business of the concern, in which he, as a partner, was equally interested with the other partners, was not a private, individual contract, but an undertaking on account of the concern. The same engagement entered into with a stranger would have been binding on the firm; and the present plaintiff, as a member of that firm, must have contributed his proportionate part of the sum contracted to be paid. And what is there in the mere circumstance of his being employed [**9]  as the agent to transact the business required to be done, in the place of a stranger, to give to the same terms an entirely different meaning and character, and to turn into a separate individual undertaking on the part of some of the partners, a contract, which in the case of another, would have been considered as made on account of, and binding upon the firm? We can perceive nothing. The services rendered, were for and on account of the firm--the compensation for those services to be paid by the firm, and his just proportion of that compensation to be borne by the plaintiff, as one of the firm. He could not sue the firm of which he was himself a member, nor can he sustain this suit against one of his copartners for services rendered the firm.
The court are of opinion that the judgment of the court below ought to be affirmed.  

DISSENTBY:
STEPHEN 

DISSENT:

STEPHEN, J. dissenting, delivered the following opinion. The first bill of exceptions taken in this case being abandoned by the appellant's counsel, it only remains for this court to consider and decide upon the second. That exception presents the following statement of facts. [After stating the facts, he then proceeded as follows:] The [**10]  general principle is clear and incontrovertible, that one partner cannot sue another at common law for a partnership claim, unless there be a settlement of accounts between them, and a balance struck. It was formerly held that an express promise to pay was likewise necessary; but the law now seems to be settled, that such promise is not essential. 

 [*301]  The reason is, that as between the parties, as partners, their relative rights cannot be known, or the relation of debtor and creditor ascertained, until there is an adjustment of their accounts, either by themselves or by a bill in equity for an account. But it is equally clear and indisputable, that where one partner has an admitted claim against another; or, in other words, where one partner has in his hands money belonging to another partner, which he has not a right to carry to the partnership account, an action will lie at law to recover it, and that it is not necessary to resort to chancery for that purpose. This principle is established in Smith v Barron, 2 Term. R. 476, where the court decided that one partner might maintain an action for money had and received against another partner, for money received [**11]  to the separate use of the former, and wrongfully carried to the partnership account. Ashhurst, Justice, says, "the sum now claimed by the plaintiff did not belong to the partnership account; and as the defendant has received a sum of money belonging to the plaintiff alone, which he has wrongfully carried to the partnership account, he is liable to refund it in this action." Grose, Justice, says, "supposing that the plaintiff had received this money, he would have been entitled to have set apart for his separate use the whole sum, except that part which belonged to the partnership account. Then the circumstance of the defendant's having received it cannot alter the right." So in the case now before this court--if the $ 500 had been paid to the plaintiff according to contract, on his performing the stipulated service, can there be a doubt that he would have had a right to appropriate it to his own exclusive use? If he could, can his right be so materially changed by the bad faith of those with whom he dealt, in not paying it to him according to their agreement? In Gow on Partnership, 144, the law is stated to be, that where one partner pays a partnership debt out of his [**12]  own individual funds, equity will enforce a contribution. Formerly, indeed, (he says) contribution was always obtained through the medium of a bill in equity, although latterly, actions at law between partners for a contribution have become frequent. In support of this principle see also Wright v Hunter, 1 East 20, which was an action at law by one partner against another for contribution on account 

 [*302]  of money paid to a creditor of the copartnership. This case likewise shows, that the defendant in this case was liable to the whole demand, he not having pleaded in abatement that there were other partners. Lord Kenyon says, "as between a creditor and the partners, all are liable for the whole debt, though as between the partners themselves, each is only answerable for his respective share. The plaintiff here stands in the relation of a creditor to the other three partners. He might sue all or one of them; and as the defendant has not pleaded in abatement, I think the whole money may be recovered from him." The case of Holmes v Higgins, 8 Serg. & Low. 27, is distinguishable from the present; because in that case there was no express promise of compensation to [**13]  the partner, whose services were rendered to the partnership. He was merely appointed to perform a particular duty, without a promise of payment. As to the liability of one partner to be sued by another in the case of an express undertaking, the case of Van Ness v Forrest, 8 Cranch 30, is referred to as a very strong authority. In Bradford v Kimberly, 3 Johns. Ch. 433, Chancellor Kent says, "in the case of joint partners, the general rule is, that one is not entitled to charge another, a compensation for his more valuable or unequal services bestowed on the common concern, without a special agreement; for it is deemed a case of voluntary management. But where the several owners meet, and constitute one of the concern an agent to do the whole business, a compensation is, necessarily and equitably, implied in such special agreement, and they are to be considered as dealing with a stranger." Suppose in this case the partnership had been insolvent, would not Causten have had a right to recover his stipulated compensation from the persons contracting with him as individuals? Or, would he have lost it? According to the evidence contained in the bill [**14]  of exceptions, the promise was general and absolute, not qualified or conditional, and it amounted to a waiver of any right to have the partnership accounts adjusted prior to payment. If he had been selected for the agency, without an express promise of remuneration, it would have been similar to the case of Holmes v Higgins, 8 Serg. & Low. 27, referred to in the argument. A partner is entitled to nothing for services rendered in and about the partnership 

 [*303]  concerns. When, therefore, he was employed for a valuable consideration to go on this business to the south, it shows that those who contracted with him did not deal with him in the character of a partner, but as they would have dealt with a stranger. Would not the money when received by him have belonged to him exclusively, or could it have been carried to the partnership account? If he would not have received it as a partner, it is clear that it could not have been carried to the partnership account. Why then make the right of recovering it to depend upon a final settlement of the partnership transactions? And it is only in such a case, that a resort would be necessary to a court of equity to compel payment.  [**15]  As to the necessity of declaring upon the special contract, the law is stated to be, that "with respect to debts for work and labour, or other personal services, it is a rule that however special the agreement was, yet if it was not under seal, and the terms of it have been performed on the plaintiff's part, and the remuneration was to be in money, it is not necessary to declare specially, and the common indebitatus count is sufficient." 1 Chitty's Plead. 338. To the same effect is the case of Mudd v Mudd, 3 H. & J. 438. Upon the subject of the liability of one partner to be sued by another, there is a very late case, Coffee v Brian, 11 Serg. & Law. 25. The facts of that case were as follows: "Thomas Coffee, the plaintiff, John Coffee, and Brian the defendant, were jointly concerned in the Irish butter trade; John Coffee consigned the butters to Brian in London, who sold them, and Thomas Coffee accepted bills, drawn by John, to the amount of the butters sent. The profits of the various transactions were divided between the three parties. Brian having received the proceeds from a certain quantity of this butter, [**16]  Thomas expressed uneasiness at accepting bills in his own name, without some security for the risk he incurred; when Brian engaged to provide for the bills at maturity, out of the proceeds already received. Thomas Coffee having been obliged to pay the bills, now sued the defendant for the amount in an action on the bills, and for money had and received," on which count the court thought the plaintiff was entitled to recover. In that case it was insisted that the whole transaction was a partnership concern, and that, therefore, an action would not lie by one partner against his copartner, no balance having been struck, 

 [*304]  nor any agreement entered into to pay separately. In deciding this case Best, Ch. J. observes, "It has been objected that this is a partnership transaction, and no doubt the money came to the defendant as the money of all three of the partners; but that has happened which divests them of the joint property in it, and vests it in the plaintiff. The defendant says, I have money in my hands, the produce of these butters, and if you will accept certain bills, I will hold the money on your account, in case of your being called on to pay the bills.  [**17]  When the bills were paid, therefore, the money in the defendant's hands became separated from the partnership account." Park, J. says "a partner may sue for a balance due to him upon an account closed, and an agreement to pay the amount, and this is a case of the same description." This case establishes the principle that one partner may support an action against another partner without ascertaining by a settlement of their partnership dealings, whether he is a debtor or creditor of the concern, where there is an express engagement by one partner to pay him for a particular service rendered to the partnership, out of the partnership funds; for Park, Justice, observes, "the butters were consigned on the account of three, but it was necessary that one of them should accept bills, and Thomas Coffee refused to do this without some kind of security; upon which the defendant agrees to appropriate for that purpose, money already in his hands." This case could only have been likened to an account closed, and an agreement to pay the balance, upon the ground, that the express assumption of the partner to pay his copartner, if he should be compelled to pay the bills when they became [**18]  due, the amount he should so pay, amounted to a waiver of the settlement of their partnership transactions, and to an acknowledgment or admission of his right to receive the promised indemnity or reimbursement, without such a settlement. If the case now before this court is to be viewed under the aspect of a partnership transaction, the above authority, it is conceived, settles the principle, that for a sum of money expressly promised by one partner to another for a particular service rendered to the concern, he may sue in a court of common law, without an ascertainment of the relation of debtor and creditor first having been made. And it is here worthy of remark that the rigour of the law upon this subject has been lately much relaxed; 

 [*305]  for although it was formerly holden that there must not only be a balance struck, but an express promise to pay, yet it is now well settled that such express promise is not necessary to enable one partner to sue another at law. But if this case is not to be considered as a partnership transaction, but as a contract between those partners who were present and the plaintiff, in their individual capacities, the right of the plaintiff to recover [**19]  in this suit is entirely free from doubt, there having been no plea in abatement filed in the cause.
I am of opinion that the judgment ought to be reversed.
JUDGMENT AFFIRMED.  

30 of 44 DOCUMENTS 

DIMOND'S Adm'x. vs BILLINGSLEA.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

2 H. & G. 264; 1828 Md. LEXIS 16 

June, 1827, Argued 

June, 1828, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Harford County Court. This was an action of covenant, brought on the 6th of June 1821. The declaration stated that the defendant, (whose administratrix the appellant now is,) on the 9th of November 1815, by his deed of that date, duly executed, &c. for $ 2600, paid him by the plaintiff, (the appellee,) bargained and sold to him, the plaintiff, all that tract or parcel of land lying and being in Harford county, known by the name of Horse Range, on the north side of the head of Bush river, which is contained within the following metes and bounds, courses and distances, to wit: Beginning, &c. containing 200 acres of land more or less, together with all and singular the buildings, &c. and all the estate, right, title and interest whatsoever of the said William Dimond, both at law and equity, of, into and out of the tract or parcel of land and premises bargained and sold, &c. To have and to hold the said tract or parcel of land so as aforesaid described called Horse Range, or by whatsoever name the same may be called, together with the buildings, &c. unto the said William Billingslea, his heirs and assigns forever, to the only proper use and benefit of the said Billingslea,  [**2]  his heirs and assigns; and thereby covenanted to warrant and defend the same against the lawful claims of all persons, and that the plaintiff might hold and enjoy the same. The plaintiff averred that he entered thereinto accordingly, but could not hold the same free of incumbrances; neither did the said William Dimond warrant or defend the bargained premises according to his covenant aforesaid, though requested to do it; but one Elizabeth M'Comas, then and ever since being lawfully entitled to dower therein, recovered judgment thereof, and $ 72 40 costs, upon her suit against the plaintiff at Harford county court, as a court of common law; and also upon a bill filed in said court as a court of chancery. And by force of a writ of execution issued out of said court on said judgment, she the said Elizabeth M'Comas since entered into the premises, and evicted and expelled the said Billingslea therefrom, and holds one-third part thereof legally assigned to her for her dower, so that the said William Dimond has broken his covenant aforesaid, to the damage of the plaintiff $ 2000, and thereupon he brings his suit, &c. The defendant pleaded that he had not broken the covenant, &c. Issue joined.  [**3]  The death of William Dimond was suggested, and Elizabeth Dimond, his administratrix, made defendant.

At the trial in May 1825, the plaintiff gave in evidence a deed, dated the 9th of November 1815, executed by William Dimond of the one part, and William Billingslea of the other part, whereby, in consideration of $ 2600, the said Dimond conveyed to the said Billingslea, his heirs and assigns, all that tract or parcel of land lying in Harford county, known by the name of Horse Range, on the north side of the head of Bush river, which is contained within the following metes and bounds, courses and distances, to wit: Beginning, &c. containing 200 acres of land more or less. Together, &c and all the estate, &c. of the said Dimond of, in, to and out of the tract or parcel of land and premises. To have and to hold the said tract or parcel of land, so as aforesaid described, called Horse Range, &c. with the buildings and appurtenances, and all and singular the premises, unto the said Billingslea, his heirs and assigns, &c. And the said Dimond for himself, his heirs, &c. doth covenant, &c. to and with the said William Billingslea, his heirs, &c. that the said Dimond and his heirs, the [**4]  said tract or parcel of land and premises, and every part and parcel thereof, with the appurtenances thereunto belonging, to him the said Billingslea against him the said Dimond, and his heirs, and against all and every person or persons whatsoever, claiming or to claim any right, &c. in and to the same, or any part thereof, shall and will hereafter warrant and forever defend by these presents. Another covenant for further assurances, &c. for quieting the possession of the said Billingslea, his heirs and assigns, &c. The deed was acknowledged on the 9th of November 1815, and recorded the 2d of January 1816. The plaintiff also gave in evidence certain records and certificates of authentication, viz. One of the records was of an action brought on the 26th of July 1816, by Elizabeth M'Comas, against William Billingslea, claiming her dower, which belonged to her of the freehold tenements which were of N. D. M'Comas, formerly her husband. Judgment by confession in August 1817, that the demandant recover her dower of the third part of a tract of land called Horse Range, and costs. Another of the records was proceedings on a bill filed on the 24th of October 1817, by William Billingslea against [**5]  Elizabeth M'Comas, in which it is stated, that in 1794, N. D. M'Comas was seized of a tract of land called Horse Range, and in March 1794, he executed a bond for conveying the said land, which he had sold to C. A. Desables, and who paid a considerable part of the purchase money to M'Comas, and gave his bond for the residue of the purchase money. That on the 18th of July 1795, M'Comas, being in possession, executed a deed conveying the said land to Desables, at which time only £  93 0 6, of the purchase remained due, and to secure which a mortgage was executed by Desables to M'Comas. That on the 23d of July 1794, N. D. M'Comas married Elizabeth M'Comas, who is now his widow. That Desables sold and conveyed the land, and the title is now in Billingslea. That Elizabeth M'Comas had recovered her dower in the land, &c. Prayer for injunction against that judgment. Injunction granted; and on coming in of the answer of E. M'Comas, the injunction was dissolved. The court, at March term 1821, decreed that the bill be dismissed, with costs. The other record is of a writ of habere facias seisinam, issued on the 30th of May 1821, on the judgment recovered by Elizabeth M'Comas against William Billingslea,  [**6]  for her dower, which was assigned and delivered to her, of 68 acres by metes and bounds, &c. of the tract of land called Horse Range, &c. The plaintiff also gave in evidence the age and constitution of the tenant in dower, Elizabeth M'Comas. The defendant then prayed the court to direct the jury, that inasmuch as the plaintiff had never prosecuted any appeal from, or writ of error on the judgment and decree aforesaid, or from either of them, the plaintiff was not entitled to recover. Which direction the Court, [Hanson and Ward, A. J.] refused to give; but were of opinion, and so directed the jury, that upon the evidence herein, if the jury believed it, the plaintiff was entitled to recover. The defendant excepted. Verdict for the plaintiff, and damages assessed to $ 668 90, and judgment rendered thereon. The defendant appealed to this court.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

Where D by deed bargained and sold a tract of land to B, and covenanted to warrant and defend the same against the lawful claim of all persons, and M, the widow of one who was seized of the land before D, being entitled to dower at law, brought her action of dower against B, who confessed judgment, and then filed a bill in equity and obtained an injunction against her, which bill at the final hearing was dismissed, and M had execution for and assignment of her dower out of the warranted premises. In an action by B against D on his warranty--Held, that under the circumstances B was not bound to prosecute an appeal either from the legal or equitable proceedings.

Where the owner of a tract of land sold it, executed a bond for conveying the same to the purchaser, received a considerable part of the purchase money, and afterwards married, then conveyed the land to the purchaser and took a mortgage of the same premises from him, to secure a balance of the purchase money then unpaid, a right to dower at law vested in his wife, though under such circumstances she would not be dowable in equity.  

COUNSEL:
Williams, (District Attorney of U. S.) for the Appellant, contended, 1. That Elizabeth M'Comas was not entitled to dower in the land sold by her husband before coverture, and the principal part of the purchase money then paid, although the fee actually continued in him until after the coverture, when a deed was executed [**7]  to the purchaser. 2. That the appellee ought not to have confessed judgment in the action brought against him by Elizabeth M'Comas at law, in Harford county court, for dower in the land sold by her husband before the coverture, and the principal part of the purchase money then paid, but the deed therefor only executed after coverture. 3. That the appellee ought to have prosecuted an appeal from the judgment rendered in the said suit, and from the decree passed in the chancery suit brought by him against the said M'Comas, relative to the said dower, or from one of them.

1. Equity regards things agreed to be done as actually performed; consequently, when a contract is made for sale of an estate, equity considers the vendor as trustee for the purchaser, and the purchaser as trustee of the purchase money for the vendor. Sugd. 130, and the cases there cited. Where, by the custom of a manor, a tenant may bar his wife, he may do so by a mere agreement for sale, &c. Sugd. 149, 150. If the decision is not in favour of the appellant, great injustice would be done to the purchaser, who could not foresee that the vendor would be married Possession for an instant does not entitle a widow to [**8]  dower. Stow v Tifft, 15 Johns. Rep. 458. The wife of a mortgagor is entitled to dower in the equity of redemption. Collins v Torry, 7 Johns. Rep. 278. Coles v Coles, 15 Johns. Rep. 319. A widow is not entitled to dower in mortgaged estates, nor in estates held in use or trust. 1 Cruise's Dig. 155. A widow is entitled to dower in equitable estates since the act of assembly of 1818, ch. 193, s. 10; but the land in question was sold on the 9th of November 1815.

2. Mrs. M'Comas, if entitled at all to dower in the land, was only entitled to the value of the land at the time of the alienation. Humphrey v Phinney, 2 Johns. Rep. 484. Dorchester v Hasbrouck, 11 Johns. Rep. 510. Shaw v White, 13 Johns. Rep. 179. Dolf v Basset, 15 Johns. Rep. 21. The plaintiff below recovered the value of the dower of the widow, amounting to $ 668 90.

3. The plaintiff should have appealed from the judgment and decree rendered in Harford county court, in the cases between M'Comas & Billingslea; or he should at least have notified Dimond, so that he might have prosecuted the appeals, whereas no notice was given to Dimond of these proceedings. Fenwick v Forrest, 5 Harr. & Johns. 414. Fenwick's Adm'r. v [**9]  Forest, 6 Harr. & Johns. 415.

Learned, for the Appellee. 1. The plaintiff below offered the records, &c. in evidence, to which no objection was made by the defendant. She is, therefore, concluded, and cannot now call in question the correctness of the proceedings and judgment.

3. The widow was entitled to dower in the land, her husband being seized in fee during the coverture. The trust spoken of, is that created by express deed. Here the right of dower did attach. Brown v Raindle, 3 Ves. 256. Hinton v Hinton, Ambl. 277. S. C. 2 Ves. 631, 638. The dower attached on the marriage, the husband being then seized in fee. Eq. Cas. Ab. 217. Hamilton v Mohun, 1 P Wms. 121. Hitchcock v Harrington, 6 Johns. Rep. 290. Collins v Torry, 7 Johns. Rep. 278.

Williams, (District Attorney of U. S.) in reply. 1. This case was tried in the county court in May 1825. The act of assembly requiring the points raised in the court below to be stated in the record, was passed on the 16th of February 1826, (1825, ch, 117.)

2. In Gittings' Lessee v Hall, 1 Harr. & Johns. 14, the court of appeals decided, "that they will take notice of testimony improperly admitted in evidence in the court below,  [**10]  although it was not objected to, and made no part of the question decided by the court below."

3. But the records from Harford county court were admissible evidence to prove that such proceedings took place, although res inter alios acta, as admiralty records of a condemnation of a vessel insured, &c. And as the Martinique records were admitted in Owings v Nicholson, &c. 4 Harr. & Johns. 66, although not conclusive of the rights of the parties.

4. Again, the records from Harford county court were the only proper evidence of the eviction, without proof of which eviction, the covenantee could not recover from the covenantor.

5. Covenants for quiet enjoyment, and a general warranty, are only broken by a lawful eviction of the grantee. Greenby v Wilcock, 2 Johns. Rep. 1. Folliard v Wallace, Ib. 395. Kent v Welch, 7 Johns. Rep. 258. Sedgwick v Hollenback, Ib. 376. Vanderkatt v Vanderkatt, 11 Johns. Rep. 122. The covenant for quiet enjoyment goes to the possession, and not to the title, and is only broken by an entry and expulsion. Waldron v M'Carty, 3 Johns. Rep. 471. Kortz v Carpenter, 5 Johns. Rep. 120. Whitbeck v Cook, 15 Johns. Rep. 483. The same doctrine is laid down [**11]  in 4 Stark. Evid. 434, 435. An outstanding mortgage, where there has been no foreclosure or possession taken by the mortgagee, is not a breach of the covenant of seisin. Sedgwick v Hollenback, 7 Johns. Rep. 376. Van Slyck v Kimball, 8 Johns. Rep. 198. Neither is an outstanding judgment against the covenantor a breach of the covenant of seisin. Sedgwick v Hollenback, 7 Johns. Rep. 376.

6. Inasmuch, therefore, as these records were legal and proper evidence of the fact of an eviction, no inference can be fairly drawn that they were admitted to be evidence for any other purpose, because not objected to in the court below.

Learned, for the Appellee, (with the permission of the court,) in answer to the new matter urged in reply by the appellant's attorney. 1. Before the passage of the act of 1825, ch. 117, this court were concluded by the pleadings and the admitted evidence in the cause, although they were not by the bill of exceptions.

2. In Gittings' Lessee v Hall, 1 Harr. & Johns. 14, the testimony there noticed as having been improperly introduced, was a defective deed, from which the jury were directed to infer a good title; and the judgment was reversed, because the [**12]  jury could not presume a fact contradicted by the production of the deed itself. It would have been different if the deed had not been produced. It was so decided by this court in Beall's Lessee v Lynn, 6 Harr. & Johns. 336. The evidence was illegally in the case--a bill of exceptions was founded upon it, and the court were bound to notice it, as a substantive part of the case, not as an incidental fact. In the present case, the testimony was proper to prove a lawful eviction, and was not objected to upon any ground. It must, therefore, be conclusive, not only to prove that such proceedings were had, but that they were correct, proper, and conclusive between the parties. In Gittings v Hall, would the court have rejected the evidence of Hall's deed, if the parties had admitted it to have been a good deed?

3. In Greenby v Wilcocks, 2 Johns. Rep. 1, 4, the court say expressly that the declaration must state that the eviction was by process of law; and judgment was finally rendered upon a defect in the declaration. In the case before this court the eviction by a judgment at law is alleged. So in the case of Foillard v Wallace, 2 Johns. Rep. 395, the plea of the defendant did not allege [**13]  a lawful title, but only a claim; but the court said that the title of the defendant, as derived from the plaintiff, was to be considered a lawful title; for it had received the sanction of the commissioners, and the other claim set up was frivolous, because it had received no judicial sanction. In the case before this court the claim to dower had received a judicial sanction; and this court have no power incidentally, and in this indirect manner, to presume that the decision of the court below was not correct, unless that decision had come legally before them for adjudication; especially as the defendant below admitted it to be so, and the case has come here under that admission, both by the plea and all the evidence. The authority referred to by the appellant's counsel would apply, as well to the plea in this case, as to the one referred to in the authority. The records and proceedings of Harford county court are not only evidence of eviction, but an eviction by process of law. The appellee could not resist, nor was he bound to resist it further than he did. The proceedings on the chancery side of that court were in aid of the defence at law, by an application for relief to the concurrent [**14]  power of the same tribunal. The confession of the judgment at law, it is conceived, was no error in the appellee, for he had no defence to make to the legal demand for dower. The title to dower in Mrs. M'Comas, was paramount in law to the title under which the appellee claimed; and it was no error that he confessed the judgment, which he could not resist. In Hamilton v Culls, 4 Mass. Rep. 349, it was so decided; and further, that if such eviction be by judgment at law, such judgment will be plenary evidence, unless obtained by fraud. Here no fraud is alleged. The other authorities, referred to by the counsel of the appellant, do not vary the position taken on the part of the appellee.

Curia adv. vult.  

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

OPINIONBY:
STEPHEN 

OPINION:

 [*271]  STEPHEN, J. at this term, delivered the opinion of the court. This is an action of covenant brought in Baltimore county court by the appellee against the appellant's intestate, in which 

 [*272]  it is stated that the appellant's intestate on the 9th of November 1815, by deed, bargained and sold to him all that tract or parcel of land lying in Harford county,  [**15]  known by the name of Horse Range, for the consideration therein mentioned, and in said deed covenanted to warrant and defend the same against the lawful claims of all persons, and that the plaintiff might hold and enjoy the same. The plaintiff averred that he entered thereinto accordingly, but could not hold the same free of incumbrances; neither did the vendor warrant and defend the premises according to his covenant, though requested to do it. But that one Elizabeth M'Comas, being then and ever since lawfully entitled to dower, recovered judgment thereof in a suit against the appellee; and also, upon a bill filed in the court of Harford as a court of equity. And by force of a writ of execution issued out of said court, on said judgment at law, the said Elizabeth M'Comas entered into the premises, and evicted the plaintiff below, (the now appellee,) therefrom, and holds one-third part thereof by legal assignment, as and for her dower. To this declaration the defendant pleaded, that he had not broken his covenant; and issue was joined between the parties. On the trial of the cause, the plaintiff gave in evidence to the jury the deed containing the covenant of warranty [**16]  under which he claimed title to the property in which dower was claimed by Elizabeth M'Comas. He also gave in evidence a record of an action of dower by E. M'Comas, brought in Harford county court against him, in which there was a confession of judgment, and an execution, by virtue of which, her dower was laid off and assigned to her by the sheriff. And he further gave in evidence the record of a suit on the equity side of Harford county court, in which, as complainant, he prayed for, and obtained an injunction to stay proceedings on said judgment, in which suit a commission issued to take testimony; and that, on the return of the commission, the cause was set down for final hearing, and the bill dismissed. It appeared by the proceedings on the equity side of the court, that in 1794, N. D. M'Comas was seized of the land in question, and in March 1794, he executed a bond for conveying the same to a certain C. A. Desables, who paid a considerable part of the purchase money to M'Comas, and gave his bond for the residue; that on 

 [*273]  the 18th of July 1795, M'Comas executed a deed for said land to Desables, at which time Desables executed a [**17]  mortgage to M'Comas, for the residue of the purchase money; that on the 23d of July 1794, N. D. M'Comas married Elizabeth M'Comas; that Desables sold and conveyed the land, and the title is now in Billingslea, and that Elizabeth M'Comas had recovered her dower in the land. Upon this evidence the defendant prayed the opinion of the court, and their direction to the jury, that as the plaintiff had never prosecuted any appeal or writ of error from the judgment or decree aforesaid, or from either of them, the plaintiff is not entitled to recover. Which opinion and direction the court refused to give; but were of opinion, and so instructed the jury, that upon the evidence, if the jury believed the same, the plaintiff was entitled to recover. Whether the court below were correct in the opinion pronounced by them, is the question to be decided by this tribunal. It appears by the facts in the case, that at the time N. D. M'Comas executed a deed for the land to Desables, he was married to Elizabeth M'Comas, in whom a right of dower at law had unquestionably vested; for although the equitable interest was vested in Desables, by virtue of his contract of [**18]  purchase, and a part payment of the purchase money, still the legal title remained in N. D. M'Comas; and although the wife would not be dowable in equity, under such circumstances, the vendor, in the view of that court, being considered a trustee of the land for the vendee, and the principle being clearly settled, that a wife is not dowable of a trust, (for which see Sugden on Vendors, 130;) yet the wife's right of dower clearly existed at law.
The next question is, was Billingslea bound to prosecute an appeal from the judgment at law? Under all the circumstances, we think he was not; not only because he had not the shadow of a defence at law, but because he filed his bill on the equity side of Harford county court, where, if any where, the claim of dower could only be successfully resisted, by which court the bill, on final hearing, was dismissed. Upon this view of the subject, this court are of opinion that there was no error in the opinion of Baltimore county court delivered to the jury, and that the same ought to be affirmed.
JUDGMENT AFFIRMED.  

31 of 44 DOCUMENTS 

TIERNAN vs. POOR, et ux. et al.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

1 G. & J. 216; 1829 Md. LEXIS 19 

December, 1829, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from a decree of the Court of Chancery, dismissing a bill of the complainant, (now appellant.) The original bill, filed on the 21st of February, 1822, stated that Dudley Poor, (one of the defendants,) being indebted to the complainant in the sum of $ 600, and desirous of securing the payment thereof, and the interest, in consideration thereof the said Poor, and Deborah his wife, (another of the defendants,) on the 28th of March, 1820, executed to the complainant a deed of mortgage, by which they conveyed to the complainant a lot of ground in the city of Baltimore, on the north side of Market street, next to the corner of Gay street, No. 50, with a proviso, that upon payment of the said sum of money, and interest, on or before the 1st of July, next ensuing the date of the said deed of mortgage, the same should be void; which said deed of mortgage was averred to have been duly acknowledged and recorded on the 27th of September, 1820. That although the said 1st day of July next ensuing the date of the said deed of mortgage, and the period therein mentioned for the payment of the said $ 600, with the interest due thereon, has long since passed by; yet the said D. Poor, and Deborah,  [**2]  his wife, have neglected to pay the said sum of money, &c. Prayer for a sale of the mortgaged premises, &c. and for further relief.

The deed of mortgage exhibited by the complainant, as stated in his bill, was dated the 28th of March, 1820, executed by D. Poor, and Deborah, his wife, to the complainant, whereby, in consideration of the sum of $ 600, to them paid, they conveyed the lot of ground mentioned in the bill, with the proviso therein stated, with a covenant for further and other acts, deeds, assurances and conveyances. The deed of mortgage was signed and sealed by the said Poor and wife, and acknowledged by them before two justices of the peace, &c. on the day of its date. But there did not appear to have been any private and separate examination of the wife, apart from her husband, as required by the acts of Assembly, to conveyances, executed by femes covert, conveying their real estates, or relinquishing their rights of dower. The deed was recorded on the 27th of September, 1820.

The answer of Poor and wife, admitted the execution of the deed of mortgage; but by way of plea and answer to the bill, they stated that the defendant, Deborah, is one of the heirs at law,  [**3]  representatives and devisees of John O'Donnell, deceased, and as such, was entitled to a large real and personal estate, as her distributive share of the said estate. That the said estate was distributed and divided among the legal representatives of the said O'Donnell. They further stated, that after the said estate was so divided and allotted, they, the defendants, by a deed duly executed, acknowledged and recorded, bearing date on the 24th of August, 1816, did convey, &c. unto Columbus O'Donnell and John H. Poor, all their estate, and interest in the said share of the estate of the said John O'Donnell, in trust for the sole and separate use, benefit and behoof of the said Deborah, for and during the term of her natural life, so that she be suffered and permitted, peaceably and quietly, to use, &c. the said real estate, property and premises thereby conveyed, and the rents, &c. thereof, and of every part thereof to receive, take and apply to her separate use, without being subject to the disposition, &c. of the said Dudley Poor, or of any future husband of the said Deborah, and in no wise liable or answerable for the payment of fulfilment of his or their debts, contracts or engagements;  [**4]  and so as that the same estate and property thereby granted and conveyed, and every, or any part or parcel thereof might be sold, conveyed and disposed of absolutely, by the said Deborah, in such manner as she may think proper or direct; and that without the concurrence of her present, or any future husband. And from and after the decease of the said Deborah, then as to the whole of the same estate, property and premises thereby granted and conveyed, or such parts or part thereof, as may remain undisposed of, by deed or contract, in trust for all the children of the said Deborah, and their heirs, as tenants in common, equally. But in case the said Deborah shall depart this life, without leaving a child, or a descendant of a child, living at the time of her death, then, in trust for the use, and behoof of such person or persons, or for such uses and purposes as the said Deborah, (her coverture notwithstanding, or whether sole or covert,) shall or may, by any instrument of writing in the nature of, or purporting to be her last will and testament, direct, limit and appoint; and in default of such limitation or appointment, then for the use, benefit and behoof of the right heirs of the [**5]  said Deborah, and their assigns, forever. And upon this trust, nevertheless, and with full power to the said Columbus O'Donnell and John H. Poor, and the survivor of them and his heirs, with the consent, and by the direction of the said Deborah, testified in due form, but not otherwise, from time to time, at any time thereafter, to make any lease or leases, demises or grants of the estate and property thereby conveyed, or of any part thereof, with the appurtenances, for any term or terms whatever, renewable or not renewable, so as upon every such lease or leases, there be reserved to continue payable to the said Columbus O'Donnell and J. H. Poor, and the survivor of them, and his heirs, during the respective lease or leases, the best rents that can be obtained for the same; and so as in every such lease or leases, there be contained reasonable and usual covenants, in like cases; and also a proviso or clause of re-entry for non payment of the rent or rents thereby reserved. And these defendants further say, that the real estate specified and mentioned in the said mortgage was included in the said deed to the said C. O'Donnell and J. H. Poor, and was a part thereof. And these defendants,  [**6]  by way of plea, and in bar of the complainants right to recover in the said bill, say that they are advised they had no legal right to make the said deed of mortgage, and that no legal interest or title whatever was thereby conveyed to the complainant--the legal title being outstanding in the said trustees, C. O'Donnell and J. H. Poor--and moreover, that the said deed of mortgage is defectively executed; and even if a legal or equitable title existed, in these defendants, that the said deed is wholly defective in its execution, and agreeably to the laws of this state conveyed no title, legal or equitable, to the complainant. And these defendants, therefore, pray hence to be dismissed, with their costs, &c.

The deed of trust exhibited by the defendants, was dated the 24th of August, 1816, executed by them to C. O'Donnell and J. H. Poor, conveying the real estate, &c. as mentioned in the above answer and plea, and in the manner, and upon the trusts as therein stated. It was acknowledged by the defendants on the day of its date, and the wife was privately examined apart from and out of the hearing of her husband, &c. and was recorded on the 21st of September, 1816.

The complainant [**7]  having obtained leave for that purpose, amended his bill by making C. O'Donnell and J. H. Poor parties defendants.

The answer of D. Poor and Deborah his wife, to the amended bill, admitted C. O'Donnell and J. H. Poor mentioned therein, as trustees of the said Deborah in the deed of trust, are the trustees appointed by the same as therein alleged.

The complainant having again obtained leave for that purpose, further amended his bill, by stating that after the execution of the deed of trust, and before the execution of the mortgage, D. Poor had rented from the complainant a dwelling house in the city of Baltimore, which house D. Poor and his family had occupied for a considerable period. That shortly before the execution of the mortgage, there was due to the complainant from D. Poor, the sum of $ 600, as rent in arrear for the said house, and for which the complainant had levied a distress on the goods and chattels of the said D. Poor, then in the said dwelling house, of sufficient value to secure the said rent; and, at the time of the agreement hereinafter mentioned, had and held the said distress in full force and effect. That on the 28th of March, 1820, the complainant being [**8]  possessed of the said security for his rent aforesaid, the said D. Poor and Deborah his wife, agreed with him, that they would execute the mortgage filed with the original bill in this cause, for the purpose of securing the payment of the aforesaid rent, in consideration that the complainant would relinquish his said distress, and give up the said goods and chattels, levied on as aforesaid. The complainant alleges that he complied with the said agreement on his part, and the said D. Poor and Deborah his wife, in pursuance of the said agreement, executed the said mortgage, and the said goods were given up to the said D. Poor, and the said mortgage was duly recorded according to law. That the said mortgaged property constituted a part of the property mentioned in the said deed of trust; and that the complainants claim remains unpaid. Prayer, that the mortgaged premises may be decreed to be sold, &c. and for other relief, &c.

To this amended bill, all the defendants answered, admitting the facts set forth in the said bill of complaint, to be true as stated; yet they allege and contend that the complainant is not entitled to relief; and therefore pray that the said bill may be dismissed [**9]  with costs, &c.

Agreement. "It is agreed in this case that the Chancellor may take the papers and give a final decree--the counsel for both parties considering that the questions of law connected with it, having been fully discussed before his honor, the Chancellor, in a late case against the same defendants, that it is unnecessary to discuss them again." Signed by the counsel.

BLAND, Chancellor, (September term, 1826.) From the whole proceedings the case appears to be substantially no more than this. The plaintiff, to secure a debt due to him, obtained a mortgage of certain property from Dudley Poor and wife, who by their plea allege, that prior thereto the mortgaged property had been conveyed to Columbus O'Donnell and John H. Poor, in trust for certain uses as in that deed mentioned, and therefore, that Dudley Poor and wife had no right or power in equity to make and execute the mortgage relied on in the bill. The plaintiff has admitted the sufficiency of the plea by replying to it. And the truth of the facts therein stated, which alone has been put in issue, is clearly established by the proceedings in the cause. The plea covers the whole substance and merits of the plaintiffs [**10]  case, and consequently, being fully sustained in law and fact, puts an end to it altogether.--DECREED, that the bill of complaint of the complainant be dismissed with costs.

From which decree the complainant appealed to this court, where the following agreement was entered into by the counsel of the parties.--"In this case it is agreed that the plea to the original bill shall be considered as a plea to the amended bills--the appellant reserving all objection to the plea itself, both in form and substance, and not admitting it to be a plea at all." 

DISPOSITION:
DECREE REVERSED.  

HEADNOTES:

Where the facts charged in a bill were all admitted to be true by the pleadings, and there was no replication, but the parties agreed that the Chancellor might take the papers and decide the cause; by such agreement the cause is set down for hearing, and whether the proceedings of the defendant be regarded as a plea, or as an answer, the question submitted, is on their legal sufficiency to bar the plaintiff's claim.

When any instrument of writing is designed to operate as a transfer of property, and proper and apt terms are used, whereby the meaning of the parties can be clearly ascertained, if some circumstances are omitted to give it legal validity, which deprive it of its intended, specific operation, a Court of Equity will set it up as a contract, or as evidence of a contract; and when the rights of innocent third parties would not thereby be affected, will, as between the parties to such instrument, carry it into specific execution; provided it be founded upon a valuable consideration.

P and his wife, in consideration that T would give up a lien which he held upon P's personal property, agreed to execute a mortgage of certain real property, which, by a post-nuptial settlement, had been conveyed to trustees for the sole use of the wife, with power to her to "sell, convey and dispose of the same, absolutely in such manner as she might think proper to direct, without the concurrence of her husband, and from and after her decease, such parts of the property as should be left undisposed of, by her deed or contract," was conveyed in trust to her children. In pursuance of such agreement, T gave up his lien, and P and his wife executed a deed to T, for some of the trust property. The deed was in the usual form of a mortgage, except that the wife was not examined apart from her husband, by the justice of the peace who took her acknowledgment, and according to the Acts of Assembly passed in relation to deeds executed by femes covert grantors. Upon a bill filed by T, praying a sale of the mortgaged premises, the court held, that whether the instrument of writing which forms the basis of this call, for the interposition of a Court of Equity, be in fact a mortgage, in its legal and technical sense, in consequence of its not having been acknowledged in the manner which the acts of Assembly require, it was not necessary to determine; but it was clearly intended to be a mortgage, and within the limits of the wife's disposing power; and therefore decreed the property mentioned therein to be sold.

The title to the assistance of a court must be exposed by the pleadings; but the style and character of pleading in equity, has always been of a more liberal cast, than that of other courts; as mispleading in matter of form there, has never been held to prejudice a party, provided the case made is right in substance, and supported by proper evidence. 

COUNSEL:
Gill for the appellant contended,--1. That the deed of trust from D. Poor and wife to O'Donnell and J. H. Poor, conveyed to Mrs. Poor an equitable estate for her sole use, independent of her husband; which estate she had a right to assign absolutely or mortgage at her discretion, by the terms of the trust deed.

2. That having such right, it is bound by her contract set forth in the bill; and the Chancellor erred in not decreeing a sale of it to satisfy her contract.

3. That if there be any error in the mortgage from Poor and wife to the complainant, then upon the original contract independently and without [**11]  that mortgage, the complainant having fulfilled his part of the contract, and Poor and wife having received a valuable consideration from him, he is entitled to a sale of the property described in the mortgage, to satisfy his claim.

4. That this cause is substantially before this court, as it was before the Chancellor, upon general demurrer--the answer to the amended bill being in effect a demurrer.

5. That there was no plea filed by the defendants in this cause.

6. That if there was a plea, it was abandoned or overruled by the last amended answer; and if not, the agreement to submit the case, was in effect, setting the plea down for hearing.

On the first and second points, he cited Price & Nisbet vs. Bigham's Ex'rs, 7 Harr. & Johns. 296, 318.

On the third point, he cited Williams's Ex'rs. vs. The Mayor &c. of Annapolis, 6 Harr. & Johns. 533. Hunt vs. Rousmaniere's Adm'rs, 1 Peters's S. C. Rep. 13.

On the fourth point. This case is to be considered as if the defendants had demurred. The bill as last amended is admitted in every particular. It is not in any respect contradicted by the plea filed to the original bill, and the last amended answer in terms,  [**12]  admits the amended bill; and it is this bill which discloses the plaintiffs claim. There is no dispute about, no denial of the facts. There was nothing for a replication to act upon. Nothing then was left for the Chancellor to decide, but the law of the case arising upon the bill. In effect, therefore, it is as if a general demurrer had been filed, and exclusively relied upon. The law of this case in every particular is settled by this court in the case in 7 Harr. & Johns. before referred to. The law of this case is its conscience and honesty, arising from the fact, that the plaintiff at the request of the defendants, Poor & Wife, gave up to them a valuable property, for which he now asks payment.

On the fifth point. Is there any plea in the case? The Chancellor says there was a plea to which the complainant replied. If there was a plea to the original bill, it is admitted there is one to the amended bills. But it is denied that it was a plea at all. It is an answer, and not a plea. It is wholly deficient in the form and substance of a plea. Mitf. Plead. (ed. 1812,) 235, 238, 240. Beames's Eq. Plead. 339, 340. The defendant must plead to the whole of the bill, or a part, and then [**13]  answer as to the residue. The plea and answer must be distinct, and cannot be mixed together. Ringgold vs. Ringgold, 1 Harr. & Gill, 12. Here it is impossible to discriminate between what facts are relied on to constitute a plea, and what, to constitute an answer.

On the sixth point. If it is a plea and not an answer, it never was replied to. There was no general replication. The case was set down for hearing under the agreement entered into for that purpose. The filing the amended answer, abandoned the plea. What is the effect of a plea, and an answer admitting the facts in the amended bill? There could be no occasion for the plea to the amended bill, as it contains all the facts stated in the supposed plea. Mitf. Plea. 254. Chase vs. McDonald & Ridgely, 7 Harr. & Johns. 178, 197, 198.

Winchester for the appellees. This is an attempt to make the wife's separate estate, answerable for her husbands debt. The trust is express that the property should not be disposed of to pay the debts of the husband. The mortgage to the complainant was acknowledged by D. Poor and wife, but she was not privately examined, &c. as required by law. Was the property at the time of the mortgage,  [**14]  liable to the mortgage, or the contract growing out of it? The bill does not speak of the mortgage as a contract growing out of, or within the deed of trust, under the power reserved to the wife to make a contract. The bill is to foreclose a mortgage, and for no other purpose. Is it a mortgage sufficient to pass the estate in the property of a feme covert, admitting that it was not trust property? She cannot be considered or regarded as a feme sole, capable of making her separate estate answerable for the debts of her husband. 1. The mortgage is not in execution of the power reserved to the wife under the deed of trust. 2. If it is, it is such a defective execution of the power, as this court will not aid. A feme covert cannot dispose of her real estate unless agreeably to the act of Assembly; or under some power reserved to her by deed, and in execution of such power. This deed cannot be considered a mortgage; nor is it in execution of the power reserved to her under the deed of trust. The case of Price & Nisbet vs. Bigham's Ex'rs, is not similar to the present. There the contract was for improvements to be made on her estate; and there was an attempt by her and her trustee to execute [**15]  the power reserved to her.--Here the wife could not contract, except in the way pointed out by the trust. She must have united with the trustees in any transfer of the property. It cannot be a contract by a feme covert, unless executed agreeably to the act of Assembly, or according to the power reserved to her under the deed of trust. The estates of femes covert are strictly protected. This is not such a defective execution of the trust as will be aided by this court. No such case can be found where it was ever done.

The question relative to the plea will occur in another case against the same defendants, and will be there argued. But there is a plea, and there was a general replication to it. The Chancellor says so, and he is presumed to know the state of his own records.

Gill, in reply. The debt due by Poor to the complainant, was extinguished by the surrender of the distress. The distress was abandoned at the instance of Mrs. Poor, and it then became her debt, for which she contracted to pay the amount. There was as strong an inducement in this case for the wife to enter into the contract, as there was for Mrs. Price's contracting in the case of Price & Nisbet vs. Bigham's [**16]  Ex'rs. No particular form of conveyance is pointed out in the deed of trust before mentioned, and the manner in which Mrs. Poor might contract, is unlimited. She could act as a feme sole; and if so, she need not have been examined apart from her husband on acknowledging the mortgage to the complainant. Her husband need not have been a party to the mortgage. It was valid without his being a party or consenting to it. What is the effect of her covenant in the mortgage? She has covenanted for further assurances to make her mortgage effectual in case of need--and therefore as Mrs. Poor's contract can be enforced as if she were a feme, admitting the deed to be defective as a mortgage to pass the estate; yet there is such a contract as a Court of Equity, which assumes that done which ought in honesty to be done, can enforce. The Chancellor undoubtedly supposed there was a general replication, but it is believed he adopted that error, from the fact that another case against the same defendants upon the same deed of trust, was before him at the time he decided this, in which other case, there was a general replication and commission--We deny that its existence is to be assumed, because the [**17]  Chancellor's decree assumes such existence, the mistake in that fact, which might happen to the most cautious under such circumstances, is one of the grounds of this appeal.  

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

OPINIONBY:
ARCHER 

OPINION:

 [*226]  ARCHER, J. delivered the opinion of the court.
It will not be necessary in this case, to determine whether the defence of the defendant is partly an answer, and partly a plea in bar, or whether it is a plea in bar supported by an answer, or, if a plea, whether it is overruled by the answer. These questions not necessarily arising on the record; no replication has been filed, and the cause has been set down for hearing by agreement of counsel upon the proceedings in the case; if it be an answer, upon bill and answer, if a plea, then upon the bill and plea, in either case, all the facts set forth in the bill are admitted to be true, not by setting the cause down for hearing, but by the pleadings in the cause, and if the defence be in fact a plea, the cause having been set down for hearing, the question is submitted on its legal sufficiency to bar the remedy which the complainant seeks.
The facts of the case appear to be, that [**18]  Dudley Poor was indebted to Luke Tiernan, in the sum of six hundred dollars, for rent in arrear--That for the purpose of securing the amount due, Tiernan levied a distress upon the goods of Poor--That to relieve his property from this lien, thus acquired by Tiernan, Poor and Wife agreed with him that they would execute the paper, purporting to be a mortgage, filed with the proceedings, and Tiernan, in consideration thereof, agreed to give up his distress--That upon the fulfilment of the agreement on the part of Poor and Wife, the goods levied upon were given up, and his lien by distress surrendered.
That the property upon which the mortgage operated had belonged to Mrs. Poor, and had been conveyed by a deed of trust, on the 24th of August, 1816, by Poor and Wife, to Columbus O'Donnell and John H. Poor, for the sole and separate use of Mrs. Poor, during life, and in no wise answerable for his debts and engagements, with a power to her to sell, convey and dispose of absolutely, in such manner as she might think proper to direct, without the concurrence of her husband, and from 

 [*227]  and after her decease, such parts of the [**19]  property as should be left undisposed of by her deed or contract, was conveyed in trust to her children and their heirs, as tenants in common.
In the case of Price & Nesbit vs. Bigham's Ex'rs, the question was presented how far it was competent for a married woman, by a contract under seal, to charge the payment of a debt on her real estate, which was settled on her by a deed of trust for her separate use, with a power to sell and convey and absolutely to dispose of the same, by a deed duly executed by her, her coverture notwithstanding, and in delivering their opinion on this point, the court after stating that by the express terms of the trust, she might pass her lands by deed, and they emphatically ask if this power exist, "how can the power to encumber it by mortgage or charge it by contract, be denied to her?" The law allows her, notwithstanding her coverture, to part from her whole estate, upon the principle, that in doing so, she acts as a feme sole as to her separate property, and upon the like principle, and to promote fair dealing, it must be conceded to her to charge and encumber it with her debts.
Whether the instrument of writing which forms the basis of [**20]  this call, for the interposition of a Court of Equity, be in fact a mortgage, in the legal and technical sense of that term, in consequence of its not having been acknowledged by Mrs. Poor in the manner, in which the acts of Assembly require the acknowledgment of feme's covert to be made, it is not necessary to determine. Nor do we mean to intimate any opinion upon the subject. For the principle is a well settled and familiar one, that where any instrument of writing is designed to operate as a transfer of property, and proper and apt terms are used whereby the meaning of the parties can be clearly ascertained, if some circumstances are omitted to give it legal validity, whereby it is deprived of its intended specific operation, a Court of Equity will set it up as a contract, or as evidence of a contract, and where the rights of innocent third parties would not thereby be effected, will, as between the parties to such instrument, carry it into specific execution, provided it be founded upon a valuable consideration, 2 P. W. 242. The 

 [*228]  deed in this case was clearly intended to be a mortgage to secure the payment of the complainants debt, and was no [**21]  doubt meant by the parties to be clothed with all the formalities and solemnities necessary to give it a legal and effective operation as such. Its design and meaning was to secure a particular debt, and to charge it as a lien on the wife's separate property. If it be deprived of legal validity for the want of a privy examination, we are still at liberty to look at it as illustrating and evidencing the agreement of the parties, and will coerce its execution according to that original design. Such a course would be demanded by the first principles of equity. For what could be more inequitable than to permit a party to escape from the fulfilment of his contracts, by the mere omission of legal forms?--in which omission too, he may have been the sole actor, and in all cases a participator, and to allow him to reap the advantages from such omission, of all the consideration which constituted his inducement, for entering into the contract.
A voluntary contract could neither be coerced in equity, nor could advantages from it be obtained at law. And this leads us to the enquiry, whether the consideration here was valuable, and of this there cannot be a question entertained. The admission [**22]  in the cause shew that the complainant surrendered his lien on the property distrained in consideration of the security, which he and all the parties to it believed he had obtained by the mortgage. It was the mere substitution by consent of one security for another, and if relying on the acts of the parties, he has relinquished a certain indemnity, and is now to be told, that his security taken in return, and intended as an equivalent, is gone, the result would be, that equity would enable them to perpetrate a fraud.
But it is said that the wife was not benefitted by any of these stipulations. It is not necessary that she should have been. It is sufficient, acting with her property as a feme sole: that she contracted to pass it for her husband's debts, on condition that a benefit should be bestowed upon her husband, and that the creditor seeking the benefit of this contract, and relying upon it, surrendered an existing security or advantage.

 [*229]  It is not meant to intimate in any thing which has been said, that however the complainant might suffer by a reliance upon the conduct of those with whom he contracted, that the execution of this contract could be enforced against [**23]  the rights of disposition contained in the deed of trust. That would constitute a paramount law, governing and controlling every contract in relation to it, and it need be scarcely necessary to say, that no decree could pass against her to carry into effect any contract she might make, unless such contract were within the limits of her jus disponendi.
This is a stronger case in favour of executing the contract, than was the case of Price & Nesbit vs. Bigham's Ex'rs. There the power was to pass the estate by deed. Here it is by deed or contract. Embracing by the latter term, the power to pass the estate by every kind of agreement known to the law, in which, estates of the description mentioned in the deed of trust, could pass.--As a feme sole, she had power to contract with any one, and to bind her estate, and to charge it with such contract. The power is sufficiently large and unrestrained to permit her to contract as security for others, and thus to pass her estate for the benefit of the principal, and to secure to his creditors their debts--she might voluntarily sell her lands, and with the proceeds pay her husband's debts. Why might she not upon a consideration [**24]  incumber it for the same purpose? There is nothing in the spirit and meaning of the deed of trust in opposition to such liberty; on the contrary, every thing to uphold and confirm it--while it is cautiously guarded against liability for her husband's debts, her will and power over it is unrestrained. And if she chooses to exercise a kindness to her husband in discharging his debts, and thus charging her lands upon a sufficient consideration, there is clearly nothing in the intention of the settlement which forbids it. She was never intended to be placed in a state of pupilage with regard to her property, but left free to act as she pleased, with regard to it, as fully and as perfectly as if she had been a feme sole, and as if she had the legal title; nor are we bound in order, to give efficacy to her acts, to see that she has sought the counsel of 

 [*230]  her friends, or solicited the permission of her trustee--such a limitation would restrict her will, in violation of the essence and spirit of the power.
It is supposed that the allegations in the bill do not set up a proper foundation for the interposition of a Court of Equity. The plaintiff's title to the assistance [**25]  of the court, must always be exposed by the pleadings; but the style and character of pleading in equity has always been of a more liberal cast than that of other courts, as mispleading in matter of form has never been held to prejudice a party, provided the case made is right in matter of substance, and supported by proper evidence. Cooper Eq. Plead. 7-8.
The allegations then contained in the original and two amended bills, are in substance these--That the property prayed to be sold was conveyed to trustees in trust for the separate use of the wife of Dudley Poor, setting out in substance the uses and trusts to which the property was subjected, it then avers the existence of a debt due from Poor to Tiernan, that Tiernan had surrendered his lien on the property of Poor, in consideration of the execution of a mortgage by Poor and wife on the lands of the wife thus conveyed in trust, which lands thus mortgaged, are prayed to be sold for the satisfaction of the debt. According to our views these averments make out a clear case for equitable interposition. In point of form it may not have been strictly correct to treat the instrument of writing in controversy,  [**26]  as a legal mortgage, as it seems to have been done in the original bill. As such it may not be clothed with the necessary legal attributes. If it be not, thus clothed, it is at all events, clearly a contract which equity will treat as a mortgage, and as between these parties, so far as concerns this suit, liable to all the incidents of a strictly legal mortgage, as much so as if all the formalities of acknowledgment, privy examination, and registration, had been pursued.
Entertaining the views we do, we cannot but declare, that in substance, the allegations are correct and sufficient, and the equity clear and unquestionable.
THE DECREE OF THE CHANCELLOR IS REVERSED.  

32 of 44 DOCUMENTS 

STODDERT'S Lessee vs. MANNING.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

2 H. & G. 147; 1828 Md. LEXIS 9 

June, 1828, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Charles County Court. This was an action of ejectment for the recovery of two tracts of land called Rotterdam and William and James. The defendant, (the appellee,) took defence on warrant, and plots were returned.

1. At the trial the plaintiff, (the appellant,) produced William Wheeler Lewis, who gave in evidence, that about thirty-five years ago there were some peach trees at the place marked on the plot [SYMBOL OMITTED]. The plaintiff then produced the following letter, plot and explanations, which he proved to be in the handwriting of Theophilus Hanson, who is now dead, to wit: "Thursday, June the 1st, 1797. D. Sir, I received yours, left at my house yesterday, requesting my advice and opinion respecting the first and second lines of the tract of land called William and James, on which your land in the neck in some degree depends. As to my advice and opinion, I think of little consequence. I shall, therefore, lay all the circumstances before you on which my opinion is founded. The William and James is a resurvey on a tract of land called Rotterdam, about the year 1728. The certificate says, (after running a number of courses,) to an ancient bounded white oak [**2]  standing on an ivy point by Nanjemoy creek side, opposite to the dwelling house of Mr. William Stone, at which place, (according to the depositions of Nicholas Cooper and Robert Taylor, formerly taken,) stood the second bound tree of Rotterdam, from thence running into the woods east according to the original line of Rotterdam, for the length of 500 perches, then S W by W 270 perches, to a locust post now put up in the line of the said tract called Nanjemoy or Indian Town, then, &c. About thirty years ago Mr. Hutchison and Mr. Stoddert run this land, or part of it, in order to make a division, (as you will see by the enclosed paper,) but for some reason, and probably because, (what you call the first line of William and James did not take in their possessions,) did not complete the division. In the year 1764, Wheton Wallace made a resurvey, and took up the land left out by the then running the east line of William and James as far as the head of Goose creek, or nearly as far. This appears to have been done a very little after the survey made by Hutchison and Stoddert. Some time after this survey, Mr. Henry Brent took up the balance of the land left out by the first line of William [**3]  and James. About 10 or 12 years ago, Mr. Hutchison called on me to survey William and James, at which time the appearances were as represented in the enclosed paper. There were then three or four witnesses; Charles Timms was one, the rest I do not remember; they all agreed in the same representation; they had all lived long in the neck, and appeared to be well acquainted with the circumstances. I made the survey for Wheton Wallace, as assistant under my father, and well remember running the first line of William and James a considerable distance into the possessions and cultivations of the tenants on the William and James. From these circumstances it is my opinion, that the cast line of the William and James, from the second boundary of Rotterdam, ought to be run so as to include the possessions as shown, and that it would be so supposed, provided that no transactions of the proprietors of the William and James would operate against them. There is no possession that will operate in this case I believe; and although the correction, agreeably to the age of the William and James, would not include the former possessions; yet as its my opinion, according to the original line of Rotterdam,  [**4]  it would be corrected agreeably to the age of Rotterdam, so as to include the former possessions, and that the second line would run from the end of the first line as aforesaid to a free stone, a boundary of St. Thomas's Manor, which is also a boundary of William and James. And if the transactions of the proprietors of the William and James should prevent them from their claim on the first line, I do not think it would prevent yours on the second. I would advise you to get more able opinions than mine before you do any thing on the land which might involve you in a suit, in which you might possibly suffer. I am dr. sir, with sincere respect and esteem yours, &c.

Theo. Hanson.

N. B. Nanjemoy, or Indian Town, is a tract of land (I believe,) resurveyed with Rotterdam into William and James."

[Then follows the plot, with the explanations thereof.]

The plaintiff then prayed the opinion of the court, and their direction to the jury, that the same was competent testimony of the facts therein stated. But the Court, [Key, and Plater, A. J.] refused to admit the said letter, and plot and explanations, in evidence to the jury. The plaintiff excepted.

2. The plaintiff [**5]  then produced Thomas Burgess, who was sworn in chief, and then refused to give testimony, and prayed the protection of the court, alleging that he was interested, and produced to the court a plot made for his private use, to show his interest; the court then called on James Brawner, who swore that the beginning of Bye Fields Close, was the same as the boundary at B, on the plots and explanations filed in this cause. But the said plot, produced by the witness of Bye Fields Close, was not located on the plots filed in this cause; which said tract called Bye Fields Close is the land of the witness, Thomas Burgess. Whereupon the court was of opinion, that the said Thomas Burgess was interested, and incompetent to give evidence to the place B, marked on the plots filed in this cause. The plaintiff excepted.

3. The plaintiff then offered Thomas Burgess, who had been offered as a witness on the survey at a place marked on the plot B, who was sworn in chief, but objected to giving testimony, alleging that he was interested in the location. The witness then produced a plot made out by the surveyor for his private use, and the surveyor gave testimony that the beginning of Bye Fields Close [**6]  was at the same place as the second boundary of Rotterdam marked B, as on the plots filed in this cause, which said plot, thus given to the court by the witness, and which plot and lines were not located on the plots filed in this cause, is as follows: [Here follows the said plot.]

The witness then produced a patent for Bye Fields Close, granted to Jeremiah Dickeson, on the 26th of May 1663, lying on the east side of Avon river, in Charles county, adjoining to land formerly surveyed for Simon Oversee, called Rotterdam, &c. and gave in evidence that a part of the land included in the line of Rotterdam, as located on the plots filed in this cause by the plaintiff, was in possession of the witness. The plaintiff then asked the said Thomas Burgess to state what he knew of the tree marked letter B on the plots filed; and whether it was or was not the second boundary of Rotterdam; and further asked him to point out the beginning of Bye Fields Close. And then prayed the court to instruct the witness to answer the question, first as to the place marked B; and secondly, as to the beginning of Bye Fields Close. The witness replying that he was interested, and therefore objected. Which [**7]  prayer the court refused in toto, and were of opinion that the witness was interested and incompetent. The plaintiff excepted.

4. The defendant then produced Giles G. Craycroft, a competent witness, who gave in evidence that a certain Samuel Chandler, in the year 1807, who is since dead, told the witness, that sometime before, the proprietors of the plaintiff's land, and the proprietors of Wallace's land, had agreed upon a division line, and that he Samuel Chandler had been present at a survey made by said parties, and that they run the line, and blazed the trees marked on the plot i to k, and that the fence marked on the plot was put on the line; that the said parties agreed to meet again, and enter into writings or bonds, yet did not meet. To which testimony the plaintiff objected; but the court overruled the objection, and suffered the evidence to go to the jury. The plaintiff excepted.

5. The plaintiff then read in evidence the patent of the tract of land called Rotterdam, granted to Simon Oversee, on the 11th of March 1658, "lying on the north side of Potomack river, and on the eastern branch of a creek in the said river formerly called Nanjemoy Creek, but now Avon river.  [**8]  Beginning," &c. The certificate of said land is admitted to bear date the 7th of July 1651. The plaintiff then read to the jury the patent of Rotterdam, granted to Robert Doyne, dated the 9th of June 1676, reciting "whereas it appeareth by a certain inquisition indented, bearing date the thirteenth day of December, in the fortieth year of the dominion of Caecelius, late absolute Lord and Proprietary of the provinces of Maryland and Avalon, Lord Barron of Baltimore, taken by Henry Adams and Thomas Mathews, Gentl. by virtue of a writ of mandamus, issued out of our court of chancery, it was found that Symon Oversee of Charles county, in our said province of Maryland, deceased, at the time of his decease, was seized in his demesne as of fee, and died possessed of five hundred and fifty acres of land called Rotterdam, lying on the east side of the easternmost branch of Nanjemoy Creek; and by the same inquisition it appeareth that the said Symon Oversee died intestate, and without heir; whereupon it was the judgment of our justices of our provincial court, the eighth day of this instant, month of June, that the said 550 acres of land late in the tenure of the said Symon Oversee, is escheated [**9]  unto us for want of heir. Now know ye, that we, for and in consideration of twenty thousand pounds of tobacco, to us secured to be paid by Robert Doyne, of Charles county aforesaid, gentl we do hereby grant unto him the said Robert Doyne all that parcel of land called Rotterdam, lying on the north side of Potomack river, and on the eastern branch of a creek in the said river formerly called Nanjemoy Creek but now Avon river, beginning," &c. The plaintiff further read in evidence the patent of a tract of land called William and James, granted to William Hutchinson and John Stoddert on the 27th of May 1736, in virtue of a special warrant to resurvey two tracts or parcels of land, the one called Nanjemoy Indian-Town, and the other called Rotterdam--five-sixth parts whereof were granted to the said Hutchinson, and one-sixth part to the said Stoddert, &c. The plaintiff then offered in evidence the following affidavit of John T. Stoddert, the lessor of the plaintiff, viz. "John T. Stoddert makes oath, that in the month of September, in the year 1819, he called upon Thomas H. Bowie, Esquire, then register in chancery, to make search in his office for a commission issued out of the high court [**10]  of chancery, directed to a certain Anthony Neale and William Chandler, bearing date the 15th of March 1713, for the swearing and examining evidences relating to the bounds of a tract of land lying in Charles county, called Rotterdam, belonging to the orphans of William Hutchison, and for the report of said commissioners. Such search was made by the said register as this deponent believes; and a copy of the report of the commissioners containing two depositions, to wit, one of Nicholas Cooper, and another of one Robert Taylor, to the second boundary of Rotterdam, was furnished; and the deponent was informed by the said register, that it was the only paper relating to this business that he could find in his office upon diligent search." Sworn to the 28th of March 1822. The plaintiff then offered to read in evidence the following paper, being copies of the depositions referred to in the above affidavit, and obtained from the court of chancery, to wit: "Maryland, sct. In obedience to a commission out of the high court of chancery directed to us, Antho. Neale and Wm. Chandler, the subscribers hereof, bearing date the fifth day of March anno 1713, for the swearing and examining evidences [**11]  relating to the bounds of a tract of land lying in Charles county, called Rotterdam, belonging to the orphans of Wm. Hutchison, we have taken these following depositions, hereunder transcribed, being from such persons as was offered unto us by Mr. James Stoddert, guardian to the orphans, viz. Nicholas Cooper, aged seventy years or thereabout, being by us duly sworn upon the Holy Evangely, and examined, saith," &c. [The matters sworn to related to the boundaries and lines of the tracts of land in controversy, but the county court having refused to permit the depositions to be read to the jury, and the appellate court having sustained that opinion upon grounds distinct from facts contained in them, they are omitted.] "Certified under our hands and seals this thirteenth day of January anno 1714. A true copy of the original sent to ye chancery by us.

Antho. Neale,

Will. Chandler."

The plaintiff then prayed the court to admit the said affidavit to be read, and to admit the said depositions in evidence. Which the court refused. The plaintiff excepted.

6. The plaintiff then, in proof of his locations of Rotterdam and William and James, read in evidence the patent of [**12]  a tract of land called Rotterdam, granted to Simon Oversee; also the patent of a tract of land called Rotterdam, granted to Robert Doyne; and also the patent of a tract of land called William and James, granted to William Hutchison and John Stoddert--all of which said patents are hereinbefore more particularly referred to. The plaintiff then gave in evidence by a certain Giles G. Craycroft, that he lived on the plaintiff, (Stoddert's,) land, in the year 1807, or 8, and that he asked S. Chandler if he knew how the fencing, located on the plot from red C to little red c was to be kept up, and that then they were near the said fence, and who informed him that the fence was put there by agreement between Hutchison, and Stoddert and Wallace, who are the same persons who held Rotterdam and the William and James, and that from the head of the marsh the line run to a box oak, standing on a point of the bank near which there are ivys and near the new discovered spring; and that he went this morning with the surveyor, and pointed out the tree which he supposes to be the tree alluded to by the said Chandler, and that there is no other box oak standing on the said point, or near it. The plaintiff [**13]  further gave evidence, that the said Chandler is dead; and also gave in evidence by the surveyor, that the tree shown by the witness, Craycroft, is the tree marked on the plot by letter B. The witness further stated, that Saml. Chandler said that he had understood from old people that the tree formerly stood under the bank, and was a white oak, but that he, Chandler, never knew any other boundary but the box oak, and that he had frequently seen it run from, and not from any other; and he further told the witness, that it was a boundary of the Indian-Town Land, which name was the common name of the lands held by Hutchison and Stoddert. And further gave in evidence by Bennet B. Semmes, that he has known the lands held by Hutchison and Stoddert for 38 years, and that the lands went by the common name of the Indian-Town Tract. This witness did not know any thing about Rotterdam, except what he has seen and heard upon the location made in this cause. The plaintiff further gave in evidence by William W. Lewis, that at the place marked on the plot by black B, there stands a box oak, the same that stood there thirty-five years ago; that it has not grown much; that it stands on a point near [**14]  a spring called The New Discovery Spring, about 20 steps from the creek, and is surrounded along the bank with ivys, and that there is no other point like it any where near it. The plaintiff further gave in evidence by James Brawner, a competent witness, that at the place marked on the plot by black B, there has stood from the time he first knew it, and still stands, a box oak upon an ivy point near Nanjemoy Creek; that there were three trees there standing when he first knew it, one a red oak, one a hickory, and the other the said box oak; that there is no other point on the creek near this place answering this description. And further gave in evidence, that the tree is marked with blaze, which appears to have been done from 15 to 20 years ago, and that the said tree is a flourishing, thriving tree. The defendant then prayed the court to instruct the jury, that the plaintiff was not entitled to recover. Which opinion and direction the court refused to give. The defendant excepted. The verdict of the jury, and judgment thereon by the court, was for the defendant, and the plaintiff appealed to this court.  

DISPOSITION:
JUDGMENT REVERSED, AND PROCEDENDO AWARDED.  

HEADNOTES:

It is the modern practice in location causes to offer in evidence all the plots and explanations returned under the warrant of resurvey, which is an excellent course, well calculated to lay the whole subject before the court and jury.

A letter of a deceased surveyor, with his plot and explanations, of the lands in dispute, made up chiefly of his statements and opinions, which did not give his declarations of former runnings of the lands, which he performed as surveyor, or to which he was in any way a witness, nor describe with sufficient precision to be understood, the place and extent of the lines of the tracts therein referred to, and in the survey of which he acted as an assistant, are not competent evidence to go to the jury.

Where the record of a commission to take depositions, &c. was not produced, nor did it appear by what authority, nor under what law it was issued, nor in what manner, or under what notice it was executed, copies of depositions obtained from the court of chancery, which purported to have been taken in obedience to a commission issued by that court in the year 1713, for the swearing and examining of evidences relating to the boundaries of a tract of land, called by the same name with that for which an action of ejectment was brought, are not competent evidence; although the register of that court informed the lessor of the plaintiff, that the report of the commissioners containing the depositions aforesaid, was the only paper relating thereto that he could find in his office, upon diligent search.

A witness cannot excuse himself from giving testimony, on the ground that he is called to swear against his interest.

In an action of ejectment where defence is taken on warrant and plots are returned, an objection to the competency of a witness on the score of interest, cannot prevail, where the interest of the witness is not located on the plots; and his own private plot, made to demonstrate his interest, cannot be received in evidence for that purpose.

A witness who declined to give evidence of a particular boundary, although in the execution of the warrant of resurvey, he was at the place where it stood, and was called upon by the plaintiff to testify in relation to it, may yet at the trial be called on to testify thereto, though not sworn on the survey.

A witness who was not on the resurvey, and did not show to the surveyor a certain division line, is not competent to give evidence, in reference to such line, to the jury.  

COUNSEL:
Magruder, for the Appellant,  [**15]  contended, that the judgment of the court below ought to be reversed--1. Because the court erred in refusing in the first bill of exceptions, to admit in evidence to the jury the letter, plot and explanations, proved to be in the handwriting of Theophilus Hanson, who was dead.

2. Because the court erred in the second bill of exceptions, in declaring that Thomas Burgess was incompetent to give evidence to the place B, on the plots.

3. Also in the opinion expressed in the third bill of exceptions, in refusing in toto the prayer of the plaintiff, and especially in deciding that Burgess, the witness, was incompetent to prove the beginning of Bye Fields Close.

4. In the fourth bill of exceptions, the opinion of the court is incorrect, forasmuch as it was not competent for the defendant to prove by the witness, Craycroft, the matters set forth in said exception, and derived by the witness from Chandler. 1st. Because the said testimony is liable to any objection which may be urged against the plots, &c. in the first bill of exceptions; and 2d. Because it is hearsay evidence of an agreement as to a division line, which was never consummated.

5. Because the paper offered [**16]  by the plaintiff in the fifth bill of exceptions ought to have been permitted to go in evidence to the jury.

On the first point, he referred to Snavely v M'Pherson & Brien, 5 Harr. & Johns. 154.

On the second and third points, he referred to Peake's Evid. 192. The City Bank of Baltimore v Bateman, 7 Harr. & Johns. 104.

No Counsel argued for the Appellee.  

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

OPINIONBY:
EARLE 

OPINION:

 [*156]  EARLE, J. delivered the opinion of the Court. The appeal is taken in this case in an action of ejectment, instituted in Charles county court, for the recovery of two tracts of land, called Rotterdam and William and James. The defendant took defence on warrant, and plots and explanations were returned in the cause. In the progress of the trial, five bills of exceptions were signed by the court, at the instance of the appellant, which it has now become our duty to revise and decide upon.
It is the modern practice, in location causes, to offer in evidence all the plots and explanations returned under the warrant of resurvey. This we commend as an excellent course, well calculated to lay the whole [**17]  subject litigated, explicitly before the court and jury. It has not been pursued in the case under consideration; but the plots and explanations are, nevertheless, adverted to in the proceedings, and are sufficiently before us, to claim our attention in disposing of the points we have to act upon.
We concur with the court below, in their opinions delivered in the first and last (the fifth) bills of exceptions; but we must beg leave to dissent from those expressed by them, in the remaining bills of exceptions. In the first bill of exceptions the court were right in rejecting the letter, plot and explanations, of the deceased surveyor, Theophilus Hanson, and in not permitting 

 [*157]  them to be laid before the jury. They contain no legally correct information, and are made up mostly of statements and opinions. Unlike the case of Snavely v M'Pherson & Brien, 5 H. & J. 150, they do not give his declarations of former runnings, which he performed as a surveyor, or to which he was in any way a witness. He speaks, it is true, of a survey made between the years 1760 and 1776, when he acted as an assistant to his father, in locating a vacancy taken [**18]  up by Wheton Wallace, yet he does not designate it on his plot with sufficient precision to be understood, or to ascertain the place where the line of William and James sometimes called its first line, formerly run. He well remembers that it run a considerable distance into the possessions and cultivations of the tenants on the William and James; but the exact distance it run is undetermined, and the possessions and cultivations are not delineated on his plot. The old Peach Orchard he has mentioned, is not located by the plaintiff on the plots in this cause, and we cannot readily perceive how it would be possible to give it an exact designation, on any particular part of them, from the very uncertain information derived from Theophilus Hanson.
It is to be collected from the depositions offered in evidence in the fifth bill of exceptions, that they were taken under a commission issued from the high court of chancery in the year 1713. But the record of the commission is not produced, neither does it appear by what authority, or under what law, it was issued; nor in what manner, or on what notice it was executed. If authorised, it seems to have been altogether [**19]  an incomplete and imperfect proceeding, and the court could not have erred, we think, in refusing it admission to the jury.
In the second and third bills of exceptions, the court refused to the plaintiff the benefit of Thomas Burgess's testimony, on the score of incompetency, on account of his supposed interest in the event of the suit. In this we clearly think their honours were wrong. The objection to testify was made by the witness himself, but if it had come from a different quarter, it could not have been available. If Thomas Burgess had an interest, it is not located on the plots in the cause, and his own private plot made to demonstrate it, could not be received 

 [*158]  for that purpose. He was moreover called to swear against his interest, and it is not for a witness to excuse himself from giving evidence on this ground. Since the case of Taney v. Kemp, decided in this court in the year 1818, 4 H. & J. 348, it may be laid down as a rule of evidence, that no person shall be exempted from giving testimony on the ground that his answer may affect his interest. What the particular situation of Thomas Burgess is, in respect to the lines [**20]  of Rotterdam, or William and James, does not fully appear. But whether the establishment of the boundary at B, deprives him of a part of his land, within the lines of his tract called Bye Fields Close, or subjects him to the plaintiff's action, for a trespass on Rotterdam, or William and James, he is equally within the operation of the rule, and in neither case is entitled to exemption from giving evidence in this cause.
There is another difficulty arising out of the consideration of the second and third bills of exceptions, which we deem it proper to notice. Thomas Burgess declined to give evidence of the boundary at B, although, in the execution of the warrant of resurvey, he was at the place where it stands, and was called upon by the plaintiff to testify in relation to it. Ought he to have been rejected as a witness on the trial for this cause? The usual course is to examine a witness on the survey, and to take his deposition de bene esse; and it is not the least among many advantages attending this practice, that the testimony of the same witness in court, is applied more readily to designate points on the plots, and is, therefore,  [**21]  more perfectly understood by the court and jury. This advantage is attained in this case. By Thomas Burgess being on the ground, at the time of the survey, at the boundary B, where he was called upon to give evidence, no mistake can arise as to the place at which he was required to prove the boundary, and his testimony on the trial can be as well understood, as if it was a repetition of what he had previously sworn in the country. Nor can we perceive that the offer to swear him, could produce any surprize on the opposite party, as the intention to make him a witness to a particular and designated boundary, was explicitly avowed on the execution of the warrant. For these reasons we are of opinion, that his testimony on the trial ought not to have been 

 [*159]  rejected on the ground that he was not a sworn witness on the resurvey.
The court below certainly erred in admitting to the jury, the evidence mentioned in the fourth bill of exceptions. Giles G. Craycroft was not on the survey, and did not show to the surveyor the division line, designated by the letters i. k. on the plots, and his testimony in reference to it ought not to have been laid before the jury.  [**22]  
JUDGMENT REVERSED, AND PROCEDENDO AWARDED.  

33 of 44 DOCUMENTS 

PAWSON'S Adm'rs vs. DONNELL. DONNELL vs. PAWSON'S Adm'rs.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

1 G. & J. 1; 1829 Md. LEXIS 15 

December, 1829, Decided 

PRIOR HISTORY:
 [**1]   These were CROSS APPEALS from Baltimore County Court, from a judgment rendered in an action of Assumpsit in favour of the plaintiffs, (the appellants in the first and appellee in the second of these appeals) against the defendant (the appellee in the first and appellant in the second of these appeals.) The declaration contained two counts--One for work and labour, &c. goods, &c. sold and delivered, money lent, and for money had and received; and the other on an insimul computassent, between the defendant and the plaintiff's intestate. The defendant pleaded non assumpsit, and issue was joined. It was agreed between the parties, "that the defendant may give in evidence under his plea, any items of account which he may have in bar of the plaintiff's claim, and which he might legally set off, or give in evidence, had he filed an account in bar or given regular notice of set off"--Also, "that all errors in the pleadings be mutually released, and that each party shall be at liberty to give any special matter in evidence under the issue joined." Also, "that by the shipping articles entered into in relation to the voyage referred to in this case, John C. Pawson was to receive the sum of sixty [**2]  dollars per month, as captain of the ship Chesapeake; and that the sum of $ 2000, also referred to in these proceedings, was a compensation agreed to be paid to him, as stated in the letter of instructions, dated the 18th of November, 1819."

1. At the trial of this cause, the plaintiffs read in evidence, by consent, the following letters of instructions: the first dated Baltimore the 18th of November, 1819, from the defendant to the plaintiffs' intestate, John C. Pawson, viz:

"With my ship, Chesapeake, of which you are commander, you will proceed with all possible despatch, to the port of London. On your arrival, you will deliver my letters to John Horstman, Esq. to whom your ship and cargo are consigned. In the discharge of the cargo lose no time, and be careful to have it delivered in good order. It may be advisable, that immediately on arrival, you will engage sufficient ballast for your ship, and in every other respect provide what may be necessary to perform a long voyage. When so prepared, apply to Mr. Horstman, who will deliver you, on my account, eight thousand doubloons, which you will endeavour to ship on board without the knowledge of your crew. If they are under [**3]  a belief that you have no specie, less danger may be apprehended from them; but I recommend to you never to be off your guard. With the ship, and the coin on board, you will proceed to the port of Coquimbo, in Chili, for the purpose of loading entirely with copper, and with it proceed to Canton; there dispose of it, and with the proceeds, load your ship agreeably to the list I have furnished, and return with the same direct to me here. On your arrival from London at Coquimbo, you must not let it be known the quantity of copper you want, nor of your having only doubloons to purchase it. In the purchase of the copper, if made known how much you wanted, the price would be raised on you, and in relation to the doubloons, if it should be known that you have nothing else to purchase with, it might have the effect of reducing their value. There can be no doubt, from the best information I have, that they will bring $ 17 1/4, and may exceed that by receiving for them the coined dollars under the present government there. All these points you must attend to. If you have the means of completing the purchase, you must put on board at least 12,200 quintals. It may be necessary to apprise you,  [**4]  that much benefit may accrue by your attending and making the proper arrangements for receiving and weighing the copper. I suppose it to be useless to mention the necessity of discharging from the ship every pound of ballast, or useless matter on board of her, before you take the copper on board, because every pound so discharged, enables you to put in place thereof a pound of copper. Since writing the above, on examining letters from Chili, dated in January last, it appears there is a paper currency, depreciated in its value--this being the case, and that this depreciated paper is payable and receivable for the products of the country, I say, if this is the case, much benefit might be made by selling the doubloons for the paper money; but you might find that with the coin you could even do better to purchase, and pay in it, than to first sell your coin for the depreciated currency, and to purchase and pay with it. In all these points, you are to make your estimates and calculations. About two years since, I sent my schooner Midas, Capt. Dickinson, with Edward M'Clure, supercargo, who loaded the schooner at Coquimbo, with copper, and despatched her to me. M'Clure remained at Valparaiso,  [**5]  to dispose of a part of the outward cargo then unsold, and close the entire business of the voyage. He would certainly be there until the month of September, and he may still be at Valparaiso on your arrival at Coquimbo. Should you see him, and he has any funds of mine, or that he has departed from thence, and you find he has placed any of my property in the hands of any person there, in either case, I authorize and empower you to receive and carry it with you, either in copper or Spanish dollars, of the old coin. Mr. Richard R. Boughan, residing at Valparaiso, will give you every information in relation to the affairs of M'Clure, should he have left that country before you arrive. Boughan ought to have property of mine in his hands from a former transaction, which I authorize you to receive from him also. Boughan may be able to give you useful information. Be particular in the purchase of every article in Canton, to have them of the very best quality, and more particularly that the teas are so. To prevent misunderstanding, I deem it necessary to state your compensation to be two thousand dollars, payable on your return, with a privilege from Canton, not to exceed twenty-five tons,  [**6]  but it is to be understood that you are not to put any copper or heavy article on board at Chili, as my views are that you completely load her there with copper, and that only for my account. After my property and your privilege are on board, and the ship should not be full, if freight offers deliverable here, you will accept it.

"Should you fail in procuring copper at Chili, you will proceed in the ship with the doubloons direct to Batavia, where they are rated as high as in Chili, and with them purchase an entire cargo of coffee, which will require with proper storage from 8,500 to 9,000 picols. This quantity was brought in her by Captain Munn, but she was full in every part. Do not purchase a picol of sugar; and should your funds prove insufficient to fill her, I authorize you to draw bills for my account on Messrs. Baring, Brothers & Co. of London, or on Messrs. Hope & Co. of Amsterdam. When you complete your business in Batavia, you will proceed from thence direct to this port. In stating your privilege, it is to be understood the twenty-five tons are measurement, and if in weighty articles, twenty-five thousand pounds.

The other dated Baltimore, the 26th December, 1819,  [**7]  from the defendant to the plaintiff's intestate, viz:

"I think it is probable you are this day in London, notwithstanding I have concluded to address you, and to take the chance of its reaching you before you depart from thence. The object is to state to you, that from mature reflection, supported by various calculations, resulting in a conviction that the voyage will turn out to better advantage by returning direct from the coast of Chili to Baltimore with copper, than to proceed with it from thence to Canton, as originally intended. I need not remark to you the great difficulty and delay (and without an adequate profit) of realizing a Canton cargo in this market. It is not to be accomplished, and I would consequently be compelled to send it from hence to Europe, where no gain can be calculated upon. I therefore revoke and countermand the orders I gave to you to proceed from Chili to Canton, and now substitute that you will return with the ship and cargo of copper direct from the coast of Chili to Baltimore. As relates to the investment and disposal of your own funds, you must use your own discretion by investing it in copper or any thing else, and bringing it with you in the [**8]  ship--the copper may (as I hope it will) be bought on terms that will, with my funds and yours, load the ship very deep, but if necessary you must load her very deep. Should you fail in getting copper on the coast of Chili, you will immediately, on finding it so, proceed from thence to Samarang, in the Island of Java, and there invest my funds and your own in coffee, (no other article of the produce of the Island will answer) and proceed from thence direct to Baltimore. The government of Batavia may object to your loading at Samarang, being an out port, but you must use every means in your power to obtain from the government a permission, as you will be able to put on board coffee at Samarang, two or three dollars pr. picol less than at Batavia."

The plaintiffs also offered in evidence that the ship Chesapeake, at the date of the said letter, and before, was owned by Donnell, who continued to be the owner of the said ship during the voyage hereinafter mentioned, and until and after her return to Baltimore, as hereinafter stated--that Pawson, now deceased, was master and supercargo of the said ship, at the date of the said letter, and so continued until his death at Coquimbo, as [**9]  hereinafter mentioned. That the said vessel sailed on the said voyage from the port of Baltimore, November 19th, 1819, and arrived at London January 25th, 1820. That she sailed on the 4th day of May, 1820, from London for Coquimbo, and arrived there on the 15th of August, 1820, and sailed from Coquimbo for Guasco in January 19, 1821, arrived at Guasco January 21, 1821, and continued there until January 29, 1821, when she sailed for Baltimore. That, after being out only six hours, the ship sprung a leak, and put back to Guasco, where she remained until February 7, 1821, when she sailed for Coquimbo, and remained there until July 9, 1821, when she sailed for Valparaiso, where she arrived on the 12th July, 1821, and remained there until the 19th of that month, when she sailed for Baltimore, where she arrived October 1, 1821. That Pawson died at Coquimbo, December 4th, 1820, when the mate, Thomas A. Lane, took charge of the ship, and continued master and commander until she returned to Baltimore, as above stated.

The plaintiffs' then offered and read in evidence, the following letters and papers, which were admitted to be in the handwriting of the respective parties thereto, viz:  [**10]  A letter from the plaintiffs' intestate to the defendant, dated London, the 7th of February, 1820.

"After a very long and fatiguing passage, I arrived in the river on the 23d ult. without any material damage--In consequence of our ship's heavy draught of water, we were delayed several days in getting up. We are now about two thirds discharged, and proceeding with all possible despatch. As the ship wants caulking in the bends and upperworks, and a new beam in her (one of them being broken entirely off) I have concluded to put her into a dry dock where it can be done with more despatch and facility, and will not increase the expense above £  5, and it will afford a cheap opportunity to examine her bottom, as the copper may have been injured when she lost her rudder. I am sorry to find that doubloons cannot be got at the price you contemplated, and that the quantity cannot be procured in London--they have only yet got about one third of the number wanted, but have no doubt they can be obtained from France and Holland, they, by the last accounts from Paris, are quoted lower than they cost here, from which circumstance Mr. Horstman thinks they are plenty there--the price here is 75 [**11]  1-6 per oz.

"I have had the pleasure to receive your letter of the 26th December, in which you are pleased to alter the original intention of the voyage, which will be cheerfully and strictly attended to, and if on my arrival at Chili, I should find it necessary to proceed to the island of Java, no exertions shall be wanting to have your wishes fulfilled in getting the cargo of coffee only at Samarang."

Another letter from the plaintiffs' intestate to the defendant, dated London, the 27th of April, 1820.

"On the 24th inst. Mr. Horstman addressed a letter to me, stating that in consequence of the advanced price of doubloons, and the probability that the flour would not produce so great a sum as you calculated on, the funds you had provided him with, would not be sufficient to fulfil your order in the purchase of the eight thousand doubloons which I am directed to receive from him, and requested me to state in writing what I thought best to be done--In answer to which I wrote him that in my opinion had you foreseen or supposed any deficiency such as above mentioned, you would not have ordered a less quantity of doubloons but would have made the requisite provision to obtain [**12]  the full quantity of eight thousand. I was the further confirmed in this opinion by reflecting that your only object in sending the ship to London was to obtain the doubloons, and to be disappointed therein would frustrate the ultimate object of the voyage you had in view. I was, therefore, clearly of the opinion that you would expect him to supply the deficiency (which was about 950 doubloons) so that your ship might proceed without further delay. With this answer he was satisfied, and continued the purchase, and has now ready 7650 doubloons, leaving a deficiency of 350, which he thinks can be obtained in one or two days. Under these circumstances, we have fixed on the first day of May for the departure of the ship, with determination of taking what may then be deficient, in dollars, rather than incur further expense by delay. In consequence of the scarcity of doubloons, I have thought it advisable to invest my own funds in merchandize, in hopes that it may do as well, and because I would not interfere in any manner with your business, I therefore request that you will effect insurance from hence to Coquimbo, on the following merchandize and amount: 1 bale 8 cases British piece goods,  [**13]  " &c. the whole amounting, with commission, &c. to £  1115 13 3.

"I shall send copies of the invoices to my family, in case they should be necessary. The circumstance of the crew nearly all running away, after I had paid them the month's advance they were to receive here, and my being obliged to advance others two months' pay, this long and unavoidable detention, and the great necessities of the ship in sails, cables, &c. which was indispensable for the voyage, has added greatly to the disbursements, the bills of which Mr. Horstman will forward to you; but being now supplied, I shall be careful to keep the expenses for the remainder of the voyage, as low as possible, which I trust will appear to your satisfaction in the event."

A letter from Horstman to the plaintiffs' intestate, dated London, the 24th of April, 1820.

"You have been verbally acquainted by me of the difficulties which have arisen since Mr. John Donnell despatched the Chesapeake to my address with a cargo of flour, and with order to invest the proceeds, and a credit of £  21,000, on Messrs. Varkevessar, Derrapool & Brown, of Rotterdam, in the purchase of 8000 doubloons.

"You are aware that the literal [**14]  execution of this order has become impossible by circumstances. You know that of the flour I have only been able to sell about 700 bbls. and that the remainder remains on my hands--that I cannot, for the present, sell it, and that the ultimate proceeds of the 4721 bbls. is uncertain. You have been eye-witness of the impossibility of getting the doubloons otherwise than gradually, and this part of the business has only lately taken a turn by the unexpected arrival of about 1600 doubloons from the Mediterranean, and think the remainder, (about 900) or very near, may now be had. But the £  21,000, and the amount of the 700 bbls. which are sold, are not, by far, sufficient for the draft of Mr. Donnell for £  1160, to your order, together with the ship's expenses, and the cost of the 8000 doubloons, and if you judge that, under all the circumstances of the case, it is necessary for Mr. Donnell's interest that the deficiency be supplied by me to make up the 8000 doubloons, I am ready to do so, in order to get the vessel away immediately, and to furthering Mr. Donnell's ulterior views in this affair. You will therefore please to say, in writing, what you deem to be for Mr. Donnell's interest,  [**15]  and what you wish me to do."

A letter from the plaintiffs' intestate to Horstman, dated London the 24th of April, 1820.

"Understanding from you that there is a deficiency in the means Mr. Donnell has placed in your hands, in order to supply the eight thousand doubloons, I am directed by him to receive from you, which deficiency, it appears, arises from the doubloons being at a more advanced price than he had contemplated, and from the probability that the Chesapeake's cargo of flour, which you hold for sale on his account, not producing so great a sum as he calculated on, I have to sate to you, as my decided opinion, that had Mr. Donnell foreseen or supposed any deficiency, such as above mentioned, he would not have ordered a less quantity of doubloons, but would have made the requisite provision by enlarging the means he has placed at your disposal, so as to supply the full quantity of eight thousand doubloons. I am the further confirmed in this opinion, by the knowledge that the grand object of the voyage he has in view for the Chesapeake, depends entirely on obtaining the requisite funds in London, (say the eight thousand doubloons) to accomplish which was Mr. Donnell's [**16]  only object in sending the ship to London. I am therefore clearly of opinion, that Mr. Donnell will not only expect, but esteem it a favor, that you supply that deficiency for his account as soon as possible, so that his ship may, without further delay, proceed on her voyage, and I am confident he will hold himself responsible for the transaction."

A letter from the plaintiffs' intestate to the defendant, dated London the 27th of April, 1820.

"I am happy to inform you, that after a very long and tedious delay, Mr. Horstman has at length nearly completed your order for the doubloons, having now already purchased 7650. We have fixed the first day of May for the departure of the ship, and if the remainder of the doubloons cannot be purchased in time, we have determined, rather than incur any further delay, to take the amount in dollars.

[This letter then incorporates a copy of the previous letter of same date.]

"May 3d. Since writing the above, we have completed the quantity, and shall proceed on board to-morrow morning. There is a ship just arrived from Chili, by which I learn indirectly, there is a great probability of our accomplishing our object there. Mr. Horstman [**17]  will transmit to you the duplicates of the bills for the ship's outfits, which, together with the enclosed, (which accounts for the cash received from him,) will shew the whole amount. I have one passenger, who has paid £  100, one half of which I have paid for stores, and divided the other between myself and the ship, which you will find credited on the enclosed."

Another letter from the plaintiffs' intestate to the defendant, dated Coquimbo the 15th of August, 1820.

"I arrived here on the 13th inst. after a passage of ninety-three days, all well. I have not yet been able to collect sufficient information to act decisively with respect to loading, and shall not determine until I have heard from St. Jago and Valparaiso, whither I have written to Mr. Boughan, and Mr. M'Clure, (who I understand is yet in this country,) for that purpose; the information I get here is, that about 6000 quintals of copper may be got immediately here, and at Guasco, a port a little way to the northward of this, and that I could complete the quantity as far as my funds would go, in the course of three months; the price is said to be somewhat lower than hitherto, and I think may be bought for $ 12,  [**18]  and will stand on board at about $ 14, or $ 14 1/4, with the duties paid. I believe, however, that something may be done to save a part of the duties; the doubloons are worth $ 17 1/4 as you supposed, and 8000 amount to $ 138,000, which will put on board at the above price, upwards of 9600 quintals, or 998,400 lbs. and valuing that quantity at 20 cents, and the doubloons at cost, I am of the opinion will yield a better result than continuing the voyage to Batavia; but as there is no ship here wanting copper, I shall not commence the purchase until I make myself better acquainted on the subject, and until I am certain of getting the whole quantity. With respect to the depreciated paper currency you mention in your instructions to me, I find it only receivable by the government in payment for duties, and only for half the amount, they requiring the other half in cash: it may be bought at a discount of twenty per cent. which advantage I shall not neglect to avail myself of. I have not yet learned any thing concerning the state of your business here, under the superintendence of Messrs. Boughan and M'Clure, but shall take the earliest opportunity of forwarding to you whatever I may learn [**19]  on the subject."

Another letter from the plaintiffs' intestate to the defendant, dated Coquimbo, August 24, 1820.

"Since writing you on the 15th inst. stating that 6000 quintals of copper might be immediately secured; and our whole cargo contracted to be delivered in three months, I have concluded to load here, and hope that it may meet your views and approbation. So large a quantity of copper as I want, cannot ever be procured here at once, and from what I learn from the best authority, there has never been a more favorable opportunity than the present, for obtaining so large a quantity. I have therefore thought it most prudent, and have accordingly secured the 6000 quintals at $ 12, and have every prospect of getting the balance at the same price, and in the time above mentioned. The copper, at this price, will stand, on board, duties paid, at $ 14, 14 1/3--100. The value of the doubloons are $ 17 1/4, and with the funds I have, will put on board upwards of 9600 quintals. Mr. Boughan writes me that he has not made any collections for your account, and indeed, says there is very little probability of his ever doing so. He has instituted a law suit against the debtor, who [**20]  he says is so poor that he does not expect any thing from him, even if he is cast; he speaks also, of great difficulties he has had in ascertaining the amount of the debt, in consequence of some necessary books or papers having been destroyed in the revolutionary wars of this country. Upon the whole, there is very little prospect of getting any thing from him. I have not yet received any communication from Mr. M'Clure, (who is married at Santiago) but Mr. Boughan informs me that he believes Mr. M'Clure holds some government paper for your account, and if this intelligence is confirmed, my purchasing copper here offers a favorable opportunity of making use of it to advantage, as it is at twenty per cent. discount, but will be received at par by the government, in payment for half the amount of duties, but the other half must be paid in cash--this arrangement will also increase the quantity of copper, if effected. In my former letter, I informed you that the government here had issued orders that have a direct tendency to encourage desertion of seamen from our ships, in consequence of which I have shared the fate of several others by losing sixteen of my crew, which entirely disables [**21]  me from proceeding in the discharge and loading my ship--they are now on board one of their brigs of war, and unless captain Downes arrives here this evening, as we expect he will, they will succeed in carrying them off. I think, however, that if captain Downes should not arrive time enough to prevent this diabolical proceeding, that he will no doubt give me a crew from the frigate."

"Account sales of sundries made by Edwards & Stewart to the government of Chili, for account of captain John C. Pawson, ship Chesapeake. August 25, 1820. 45 coils cordage, weighing 113 qrs. 87 lbs. a $ 20, $ 2277 3 1/2--and one day and night glass, $ 30, amounting in the whole, after deducting $ 92 02 for commissions, to $ 2215 01 1/2."

A letter from the plaintiffs' intestate to Lemuel Goddard, dated Coquimbo, the 25th of August, 1820.

"Above you have the account sales of the cordage you shipped on board the Chesapeake, which you will perceive I have obtained a good price for. I also sold the spy glass, but the foul air extractor and the compasses yet remain on hand, without any probability of selling them, and if I am obliged to take them to the United States, shall deliver them to your [**22]  order there. My principal object in addressing you now, is to give you an opportunity to make insurance on the amount of your interest in the above transaction. This I think the more advisable, because a chance now offers for conveyance to England, and it is quite uncertain if I shall have an opportunity to write to the United States for insurance. Our interest, as per agreement, stands thus: Nett amount of sales, $ 2215 01 1/2. Deduct cost and charges per invoice, $ 1232 01 1/2--leaving $ 983 00 1/2--One half of which is $ 496 04 1/2. Which added to the original costs and charges, $ 1232 01, makes $ 1728 05 1/4.

"Which sum, say $ 1728 05 1/4, I leave you to get insured from hence direct to Baltimore, where, on the safe arrival of the funds, I hold myself responsible to pay said amount to your order. It was a mere chance I was enabled to get so good a price for the cordage. The fleet from Valparaiso on the way to attack Lima, put in here, and was very much in want of it, or I fear we should have a poor account of it, and I would advise you not to let our present success induce you to ship any quantity of cordage to this country, as the probability is, it would not sell."

A [**23]  letter from the plaintiffs' intestate to Edwards & Stewart, dated at Coquimbo the 19th of August, 1820.

"In consequence of the representations made by you, that six thousand quintals of copper might be immediately bought at $ 12 per quintal, and your decided opinion that the balance of my cargo may be contracted for at the same price, to be delivered on the first of November, I have determined to load my ship here, and hereby authorize you to purchase the 6000 quintals, and secure the remainder, amounting to between three and four thousand quintals with all possible despatch, on the terms above mentioned, or lower if possible. In making these contracts, I would recommend your particular attention to have them only with men in whom you have perfect confidence, both as to the quality of the copper and to the punctuality of the delivery. It is understood that you secure to me the just and true performance of the said contracts, so that I shall not meet with material delay to my ship. It is also agreed that you are to receive two and a half per cent. commission, and one per cent. storage, amounting to three and a half per cent. on the amount of the purchase. I must also request your [**24]  particular care and attention to secure every advantage that can be obtained in weighing the copper and in paying the charges and duties. It is also understood that you are not to purchase copper for any other order, until my cargo is completed.

"Understand that the two and a half per cent. is on the amount of the invoice, and the one per cent. on the amount of the copper at first cost, exclusive of duties and other charges."

A letter from Edwards & Stewart to the plaintiffs' intestate, dated Coquimbo the 4th of September, 1820.

"We have received your letter of this date, in which you request our purchasing for your account from 9 to 10,000 quintals of copper, at or under $ 12 per quintal. Agreeably to verbal information given you by us, that we thought 6000 quintals might be secured much before the time limited, we have now the pleasure of confirming it by enclosing you herewith, our obligation at sight, for said amount, say six thousand quintals copper, which you may dispose of when you judge most proper. As regards the residue of your order, although we cannot come under an obligation for its purchase, yet we think our success will be almost certain from information [**25]  we have, and a pledge we make you on not purchasing on any other order until yours is completed--on this point we can say no more. We accept the commissions as stated by you, two and one half per cent. on cost and charges, and one per cent. on storage on the amount of the purchase of the copper. All contracts made by us come under our responsibility, not only as to the faithful delivery, but likewise as to the quantity of the copper. All copper received is weighed by us in person, and every regard is paid to this branch that the interest of the concern requires."

A letter from the plaintiffs' intestate to the defendant, dated Coquimbo, the 4th of September, 1820.

"I have to inform you that your business remains nearly in the same state as when I wrote you on the 24th ult. viz. that I have purchased 6000 quintals of copper, and shall have the remainder, amounting to between three and four thousand quintals, ready by the first of November, at $ 12 per quintal, which, with the duties and shipping charges paid, will stand on board at about $ 14 more or less. In this transaction I was determined by reflecting that a pound of copper at that price, would nett in the United States,  [**26]  as much profit, and with more certainty, than a pound of coffee, and that the additional expense of pursuing the voyage further would be saved, and I trust that this view of the subject will meet your approbation. I have not yet received any communication from Mr. M'Clure respecting your property in his hands, nor can I give you any certain information, except that I have understood that he had invested the government paper which he held in silks, a part of which he sent down the coast for sale, and the remainder he had deposited in this place, but has recently ordered them somewhere else. I shall use my best endeavours to have a settlement with him, if possible, but I think there is no chance whatever, of getting any thing from Mr. Boughan. I am yet without a crew: in consequence of the Macedonian having a long passage from Valparaiso to this place, Cochrane had time to carry off the men, and captain Downes would not supply me from the frigate, as he thought there was a probability of his having some trouble with Cochrane, if he should attempt to obstruct his entrance into Lima. He has taken a list of the deserters, and intends to demand them. Understanding that there are plenty of [**27]  seamen in Valparaiso, I have written to the consul there, requesting him to procure me a crew, and send them down by the first opportunity, so that I am in hopes of soon being able to proceed with loading, and shall use every exertion for despatch in my power. As I may possibly not have another opportunity direct to the United States shortly, I would thank you when you make insurance on the ship and cargo, also to insure for my account, the same sum which you did me favour to insure from London here. I think it probable it will be shipped in silver bullion and copper. As it is necessary to have some light and bulky article to stow with the copper, in order to raise it in the hold as much as possible, I have purchased for that purpose a few hundred hides, and shall increase the quantity to one thousand, if they can be obtained--they cost from 9 to 12 rials per hide, and will average about 28 lbs. It is usual to purchase wood for this purpose, which is attended with considerable expense and trouble, and is afterwards worth nothing, while the hides at the above price will pay a good freight. I have employed Messrs. Edwards & Stewart, of this place, as agents to purchase the Chesapeake's [**28]  cargo, of whose integrity and honesty as merchants, I made myself perfectly satisfied of before I engaged with them; their influence with the governor and collector here is very great, from which circumstance I expect great advantages in the payment of the duties, and I have a good prospect of getting through my business without trouble or delay.

"Since writing the above, I have received a letter from Mr. M'Clure; he says he has on hand a quantity of silks, which, with the discount on government paper, (with which I understood he paid for them) cost about $ 5000, and a few other articles which would raise the amount to 1000 more; he has also from 2000 to $ 2500 in cash, which he promises to put immediately at my disposal; he also offers to make an immediate sale of the silks, &c. for cash and close the concern, if I will authorize him to do so, but it is his opinion, that to force a sale of the silks, &c. for that purpose would be attended with a loss of at least one half, and as I am only empowered by you to receive whatever he may give me, I must leave him to exercise his own discretion with respect to selling the silks, &c. but strongly recommend him to effect a settlement,  [**29]  if possible, while the Chesapeake remains here, as I am convinced you are anxious to have it closed.

Another letter from the plaintiffs' intestate to the defendant, dated Coquimbo the 4th of November, 1820.

"By the Two Catharines I informed you that I had commenced the purchase of the Chesapeake's cargo of copper, at $ 12 per quintal, which will cost on board, duties paid, about $ 14 1/4, depending considerably on the amount of that saved by the arrangement with the collector here, and a gain of from five to seven per cent. on the amount of the duties, by paying part of them with the government paper, which is at a discount, though so uncertain that it is dangerous to purchase it until the moment it is to be paid into the custom house. There is now purchased for your account 9500 quintals, nearly 7000 of which is on board, and the remainder in Guasco, whither I shall proceed and take it in as soon as I get my crew from Valparaiso, which I am daily in expectation of, and hope, in about a month more, to be on my passage for Baltimore. We have received accounts here stating that the United States had proceeded to take possession of the Floridas, and had acknowledged the independence [**30]  of this country and Buenos Ayres. If so, I think it quite likely that a war with Spain must ensue, and of course render me liable to capture on the homeward passage, by privateers under Spanish colors. Of the truth of this I hope soon to be informed, and if it is the case, I shall endeavour to sail home in company with the Macedonian, which ship is shortly expected here from Lima, and is to proceed immediately home. I have received from Mr. M'Clure the sum of $ 5500 on your account, to obtain which, he informs me, he sold the greater part of the silks, which in a former letter I mentioned he held at a great loss; he writes me also, that he intends, if possible, to sell the remainder and close the business, though I cannot inform you to what amount he still holds. I wrote him a few days ago to inform him that I expected to sail shortly, that he might make his arrangements accordingly. I have got nothing from Mr. Boughan, nor do I think there is any probability that I shall. He writes me that he is paying every attention to the suit he has instituted against the consignee of the Melanthro, and has great hopes, from the strong vouchers he has presented, of gaining the cause, but if he [**31]  does, he has no hopes of recovering any money from the circumstance of the consignee being very poor. With respect to loading the ship, I have paid every attention to have the copper of the best quality, and stowed in the safest manner, but I think it altogether unsafe to put more than 9500 to 10,000 quintals on board, as it is a very laborious cargo from its dead weight and small bulk, and the ship begins now to shew her age. I have purchased about 600 hides, which cost from nine to twelve rials each, to stow with it, for the purpose of raising the weight and increasing the bulk. I shall, however, be guided by my judgment as the ship comes down in the water, and if possible, bring the whole of your funds in copper. If there should be any surplus funds, which will not be more than the $ 5500 received from Mr. M'Clure, I shall bring it in Plata Pina, or silver in bars, the former at $ 7 56-100, and the latter $ 7 81-100 per mark of 8 ounces. In my former letters I requested you to insure for my account the sum of $ 5000. I now have to request you will insure $ 1000 more. If I find the ship too heavy laden with your copper, I shall curtail my privilege in that article, and bring my funds [**32]  in silver. I send this across the cordilleras, but I understand there is very little hopes of your receiving it, as the communication is very much interrupted by banditti."

A letter from Horstman to one of the plaintiffs, dated London the 29th of July, 1822.

"I have to acknowledge your letter of the 18th May, in which you request to be furnished with a copy of the account between the late Captain Pawson and myself, and such documents as would enable you to come to a settlement, as acting administrator, with Mr. Donnell. In reply I beg to state, that I had not any account running with Captain Pawson, as he acted entirely himself; but on reference to my books, I find the following items were paid by me, and repaid by Captain Pawson, the 19th April, 1820, viz: Barry, for charts, &c. amounting to £  69 1 2, which were the only pecuniary transactions with him direct.

"In regard to the bills of disbursements of the ship Chesapeake, which you mention were never received by Mr. Donnell, I find that I sent to Mr. Donnell, on the 13th of May, 1820, the following, viz: One letter, 13th May, with account of disbursements of the Chesapeake, £  2219 13, and a list of the vouchers;  [**33]  --one parcel, containing the vouchers, (original accounts)--one letter from Captain Pawson to Mr. Donnell--two letters from Captain Pawson to different persons, (I think Captain Hamilton and Mrs. Pawson.) These were sent to Liverpool for the purpose of being forwarded, and I find by letter from Liverpool that were sent per the Mary, which sailed the 15th of May, with the exception of one addressed to Mr. Donnell, which were sent per the Anna Maria, (the latter is presumed to be the one containing the vouchers.) From Mr. Donnell I have received no other letter than of the 18th of November, 1819, brought by Captain Pawson, and 26th of December, 1819, enclosing a letter for Captain Pawson. Captain Pawson had a bill on me, drawn by Mr. Donnell, for £  1165 9 1, at sixty days, which was due 30th of March 1819, and paid to him. I hope these details will answer your purpose."

A letter from Edwards & Stewart to the defendant, dated Coquimbo the 8th of December, 1820.

"With sincere regret we have to inform you of the death of our much lamented friend, Captain John C. Pawson, who departed this life on the fourth of the present month; to us it is particularly sensible, in consequence [**34]  of his being, from the first of his attack, until his decease, in a state of torpidity, from the nature and violence of his disorder, which prevented our making any arrangements with him in relation to his affairs at this place. We attribute, as the principal cause of Captain Pawson's death, his extreme anxiety on the subject of his crew, the receiving of which he had placed great reliance by a ship which arrived a few days before his decease, from Valparaiso, to which place he had written to a mutual friend, to ship him a crew, having lost by desertion the day after his arrival at this port. We were much disappointed at hearing that no men were to be found at Valparaiso, from the great enlistments made by the navy agent for the Chilian navy, which left us the only and very uncertain resource, of Captain Downes supplying him with a quota sufficient for taking the ship home. Captain Downes' arrival was at that time daily expected, but an arrival from the coast of Peru, where the Macedonian had gone, brought us sad intelligence of Captain Downes not being able to visit this part of the coast for some months. This news created in Captain Pawson a very sensible change in his state of health,  [**35]  which had been delicate from his arrival, by great depression of spirits, which was accompanied by a fever, which changed into the gout, entered the stomach, and after being confined four days to his bed, yielded to his Maker the debt of nature, and trust he is enjoying, through the medium of our Saviour, happiness in that world, where, sooner or later, we are all to appear."

Also the extract of a letter from Edwards & Stewart to the defendant, dated Coquimbo, January 19th, 1821.

"We likewise enclose you herewith account sales of various merchandize brought by Captain Pawson from London. His accounts, bill of lading for two boxes of Chinchilla skins, to your consignment. We also enclose you the bills of the goods for your government. We confess we feel awkwardly situated from our perfect ignorance of Captain Pawson's business, and act only from conversations we have had with Capt. Pawson, and from our judgment. We presume the property belonged to him which came in the ship, for the sale of which he has got credit. His intention was, as well as we can recollect, to invest the proceeds in 250 quintals of copper, provided the ship would load more than the 10,000 quintals, if [**36]  on the contrary he intended taking only 150 quintals for his account, the Chinchilla skins charged him in his account, and the balance of his funds in silver, if to have been had. This we believe firmly were his views, and on which we should have acted, but fearing compromising ourselves, we have considered it most prudent passing the balance of his account to your credit, and leaving it to your judgment to settle with his relations in the manner you think most equitable and just, founded on the above facts. We recollect Captain Pawson stating to us, that the cordage sold to the government was shipped on half profits by some manufacturer in England, and in order to throw light upon that part of his business, should you be addressed from England by the same, we have enclosed you separate sales of that article."

Also, the extract of another letter from Edwards & Stewart to the defendant, dated Guasco, January 28th, 1821.

"Enclosed you will receive a bill of lading for 900 pigs of copper, and thirty-six lumps of gold, as likewise another for seventy-four pigs of copper, and one large, and nines mall pigs of bar silver, and sixteen pieces of Pina silver, shipped the former for [**37]  your sole account, and the latter for account of the late Captain Pawson; by the invoices and account which we likewise enclose you, you will perceive that the whole of your funds we have remitted to the best advantage, and we have only to beg you to call to mind, in case that every thing is not exactly correct, the disadvantages we have been under from the sudden death of Captain Pawson."

Also, an extract from another letter from Edwards & Stewart to the defendant, dated Coquimbo, March 9, 1821.

"As we anticipated, the crew has deserted the ship, and has remaining on board only nine men from the Constellation. We hope to get the residue she may want to carry her home. The carpenter of the ship, from a pique he had against Captain Lane, and to revenge himself, gave information of the spot where your gold and Captain Pawson's silver were stowed on board, to the governor. This was done with so much secrecy by both parties, that we were not aware of the treachery, until the whole was in their possession. It was shipped in Guasco, and stowed by Captain Lane in the bread locker, under all the bread, without the knowledge of any one on board excepting the carpenter, in whom both [**38]  he and Captain Pawson placed the most implicit confidence. The exportation of virgin silver and gold have been prohibited by the government under confiscation of the property if taken, and many severe penalties inflicted on the parties concerned. Captain Pawson intended shipping any small balance he might have in those articles, from their paying better than any other remittance to America, from this, hard dollars being at 6 1/2 premium, and ounces at $ 17 1/4, so that in shipping either one or the other, you would have experienced a great loss. We are aware we took upon ourselves some responsibility from not having had written instructions from Capt. Pawson to ship in these articles your balance, but were actuated for your interest, and knowing Captain Pawson would have acted in like manner. We fear the hopes of recovering this property are small, as the law is explicit and severe. We shall make the necessary representations, and send you copies by next opportunity."

And another letter from Edwards & Stewart to the defendant, dated Coquimbo, July 4, 1821.

"We enclose you the proceedings of the confiscation of the silver and gold found on board the ship, which we are sorry [**39]  to say was eventually lost, notwithstanding the exertions of Capt. Ridgely, Judge Prevost, special agent of the United States of America, and our representations. We are still in hopes that at a future period this property may be recovered, and with this view have thought proper to send you the documents to substantiate any claim you may think proper to institute."

The plaintiffs further offered in evidence, that it was the known custom of trade in Chili and at Coquimbo, to employ agents on shore in the business intrusted to Pawson, and that it was necessary to do so. And also offered in evidence, that the privilege to the captain of twenty-five tons, mentioned in the contract from Canton to Baltimore, was a valuable privilege, much more so than the like one from Coquimbo, and that it was, and is, the usage of trade for the captain, if he does not use his privilege himself, to let it out to others, and even to be paid for it by the owner, if the owner used it for his benefit. That the freight from Canton to Baltimore, at the time above mentioned, was from thirty to one hundred dollars per ton. The plaintiffs' further offered evidence, that it is the usage of trade, when a captain [**40]  has such a privilege as is stated in the defendants' first letter of instructions, to wit, of twenty-five tons from Canton to Baltimore, that this privilege is entitled to a preference even over the owner, in putting the same into the vessel, and that if the captain dies in the course of the voyage, his privilege does not succeed to the next captain, but survives to his representatives.

The plaintiffs further offered in evidence, that on the arrival of the ship here, only 147 quintals of copper were delivered to the plaintiffs, as the share of the said Pawson; and they read in evidence, the following order and account, which were admitted by consent--"74 pigs copper, weighing 14,779 lbs. of the estate of Captain Pawson, received per the ship Esther, Captain Low, from Coquimbo,"--signed 29th October, 1821, by the defendant.

The plaintiffs also offered in evidence the following accounts:

________________________________________________________________________________
Dr. John C. Pawson (deceased) in account with John Donnell. Cr.	
To balance per settlement	
    in London, Sterg.	£  3 10 11	
   Short credit allowed for	
   passengers from London,	25 00 00	
		$ 126 87	
   Premium of Insurance	
   to Maryland Office on	
   $ 5166, a 4 p. ct.	$ 207 89	
   Premium of Insurance	
   to Patapsco Office on	
   $ 6000 a 2 3/4 p. c.	166 25	
	
	374 14	
   Common 1/2 pr. cent. on	
   the sums insured,	55 83	
		429 97	
   Discounts paid on 16	
   shares Bank Stock,	
   hypothecat. for $ 1200	
   in Nov. 1819, renewed	
   each 60 days, say 14	
   renewals a 12 80.		179 20	
   Proportion of landing	
   copper from ship Chesapeake,	
   and reshipping	
   on board the	
   Esther, total 550,600	
   lbs. cost $ 2454 69,	
   which on Capt. Pawson	
   14779 will be		66 00	
   Freight paid the ship	
   Esther from Coquimbo	
   to Baltimore on 14779	
   lbs. at 2 1/2 cents per Ib.	369 47	
   Primage thereon, 5 p. c.	18 47	
   Storage, storing, weighing	
   and delivering,	10 00	
		397 94	
   Amount invoice of copper	
   and bullion shipped	
   by Edwards &	
   Stewart for account,		4,694 56	
   Cronometer cost 80lstg.	355 55	
   Day and night telescope	
   of J. Allen,	22 00	
   Horsburg Directory of	
   Boyd,	24 00	
		401 55	
   Balance due by J. D.		185 00	
	
		$ 6,481 18	
________________________________________________________________________________

 [**41]  

________________________________________________________________________________
Dr. John C. Pawson (deceased) in account with John Donnell. Cr.	
By wages from 19th Nov. 1819, till	
   4th Dec. 1820, his decease at	
   $ 60,	$ 750 00	
   Dividends drawn by J. D. on 16	
   shares Bank Stock, one 1 1/2, one	
   $ 2,	56 00	
   Transfer by Edwards	
   & Stewart, of the balance	
   due by them to Capt.	
   Pawson, after his decease,	
   very improperly to me.	$ 7,777 87	
   In which was included	
   the proceeds of cordage	
   taken on board	
   for account some person	
   in London, to be	
   deducted therefrom,	2,215 18	
			5,562 69	
   Amount sales of said	
   cordage as above,	2,215 18	
   After deducting therefrom	
   for freight from	
   London to Coquimbo,	
   being a belligerent	
   port, and, an article	
   contraband of war,	
   which subjected my	
   ship and property to	
   confiscation, and	
   annulled my	
   insurance, the weight	
   of cordage as p. sales a $ 5,	$ 569 37	
   Cost of lumps of	
   gold, shipped	
   as a remitance	
   for proceeds of	
   said cordage,	
   being a prohibited	
   article,	
   and as seized	
   cost,	1452 84	
   Edwards & Stewart	
   commiss'n	
   thereon, at 2 1/2	
   p. cent.	36 32	
   Expenses incurred	
   by claiming	
   its restoration,	44 16	
		2,102 69	
			112 49	
	
			$ 6,481 18	
________________________________________________________________________________

 [**42]  

N. B. Captain Pawson took from my ship such valuable articles as he fancied for the North Point--He took from the North Point every article, when he left her, for the Chesapeake--It is, therefore, nearly out of my power to trace them--But you can certainly show by his papers, the articles he paid for, and such had, of course, a right to take from the Chesapeake.    J. Donnell.

________________________________________________________________________________
2 mos.	interest	on $ 165,	$ 1 65	
10 mos.	do	on   165 70,	8 25	
5 mos.	do	on 1721,	43 10	
	
			$ 53 00	
Interest on 1200 for 18 mos.	108 00	
	
			$ 55 00	
________________________________________________________________________________

Interest calculated on bonds until due, secured by J. D. and for which he has, in settlement, retained their amount in his hands--the $ 53 to be applied to paying the discount on J. C. Pawson's Stock note at the Office Discount and Deposit, is to be renewed by J. D. and with the $ 53, and the $ 55 now received, it is expected will pay the above discount, until his, J. C. P's return.

Received the above $ 55, which with the $ 53, interest until his bond fall due, is to be applied by me to the discount, on renewal of his stock note for hypothecated Bank Stock, 17th Nov. 1819.     John Donnell.  [**43]  

"Sales by Harrison & Sterett, for account of the administrators of the late Captain J. C. Pawson," in December, 1821 and April and May, 1822, of 14,774 lbs. of copper, amounting, deducting charges, &c. to $ 2,843 75.

The plaintiffs further offered in evidence bills of lading, and invoice of the shipments at Coquimbo and Guasco, on the voyage aforesaid. 1. Of 8000 Spanish doubloons shipped by Horstman from London on the 4th of May, 1820, for the port of Coquimbo, to the order of Captain Pawson, on account of John Donnell. 2. Of 4219 pigs of copper, weighing 8076 quintals, &c. and 411 cow hides, by Edwards & Stewart from Coquimbo, on the 19th of January, 1821, for account of John Donnell. 3. Of two boxes and one bundle of Chinchilla skins, containing 456 1/2 dozen, being the property of the late Captain Pawson, and consigned to John Donnell for the benefit of whom it may concern, by Edwards & Stewart, from Coquimbo, on the 19th of January, 1821. 4. Of 74 pigs of copper, weighing 147 quintals, &c. one large and nine small pigs of bar silver, and sixteen pieces of Pina silver, weighing 304 marks, one ounce, shipped by Edwards & Stewart from Guasco, on the 28th of January, 1821,  [**44]  to John Donnell. 5. Of thirty-six lumps of gold, weighing 608 castellanos, five tomines, and 900 pigs copper, weighing 1795 quintals, ninety-five lbs. shipped by Edwards & Stewart from Guasco, dated the 28th of January, 1821, consigned to defendant.

"Invoice of copper and hides shipped by Edwards & Stewart, on board the American ship Chesapeake, Captain Thos. A. Lane, by order of the late Captain J. C. Pawson, bound for Baltimore, in the United States of America, and consigned to John Donnel, Esq. merchant, of said place.

________________________________________________________________________________
4219 pigs of copper, wg. 8076 qqs. 19 lbs. a 12 ds.	$ 96,914 02 1/4	
 246 ox, and 411 cow hides,	932 01	
	
	$ 97,846 03 1/4	
Charges, duties, commission, &c. added,	19,259 08 3/4	
	
	$ 117,106 04   	
________________________________________________________________________________

"Invoice of copper and gold shipped in Guasco, by Edwards & Stewart, on board the American ship Chesapeake, Captain Thomas A. Lane, by order of the late Captain J. C. Pawson, bound for Baltimore, in the United States of North America, and consigned to John Donnell, Esq. of said place.

________________________________________________________________________________
900 Pigs of Copper, wg. 1795 qqs.	
   95 lbs. at $ 12,	$ 21,551 03 1/4	
Storage 1 p. c.	215 04   	
		$ 21,766 07 1/4	
20 round lumps of gold, wg. 172	
   castellanos 7 1/2 tomines a 19 1/4 rs.	416 01   	
15 do do wg. 403 do 5 1/2 do a 19 rs.	958 05 1/4	
 1 do do wg. 32 do     a 12 1/2 rs.	    78	
		1452 06 1/4	
	
		$ 23,219 05 1/2	
Charges, duties and commission, &c. added,	4,885 03 1/2	
	
		$ 28,105 01 1/2	
________________________________________________________________________________

 [**45]  

"Invoice of copper and silver shipped in Guasco, by Edwards & Stewart on board the American ship Chesapeake, Captain Thomas A. Lane, bound for Baltimore, in the United States of America, by order of the late Captain J. C. Pawson, for acc. and risk of whom it may concern, and consigned to John Donnell, Esq. merchant, of said place.

________________________________________________________________________________
74 pigs of copper, wg. 147 qqls. 79 lbs. a $ 12,	$ 1,773 04   	
Storage 1 p. c.   	17 06   	
 1 large and 9 small pigs silver, wg.	
   115 mks. 1 oz. a $ 8 p. mk.	$ 921 00	
16 pieces of pina silver wg. 189 mks. 0 oz.	1488 03	
		$ 2,409 03"  	
Charges, duties and commission, &c. added,	493 07 1/2	
	
		$ 4,694 04 1/2	
________________________________________________________________________________

"Amount of money paid by Captain Pawson to the crew of the ship Chesapeake, which returned here from Coquimbo, $ 70 59."     Signed by J. D.

And also proved that the voyage was in effect protracted by the determination to return immediately to Baltimore, and not go to Canton, as it was much more difficult to obtain a crew for the former voyage than the latter, and the ship was delayed for a long time, for the want of a crew to navigate her to Baltimore.

The defendant [**46]  then offered and read in evidence the following letters, which were read by consent, and admitted to be in the hand writing of the respective parties thereto.

The only letter which appears to have been offered in evidence by the defendant, is one from one of the plaintiff's to the defendant, dated Baltimore, 15th May, 1822.

"From a minute investigation of the account you furnished, between yourself and the late Captain Pawson, and with a reference to sundry documents in my possession, I have made out the enclosed account. With respect to the $ 2,000 for compensation, it appears to have been regularly agreed upon between you and the deceased, as the privilege he was to have, each voyage, in your ships, consequently it is claimed as a right. The cordage transaction, in your account, is totally inadmissible, the funds which arose from the sale of it, were laid out in bullion, (silver) which remains in Coquimbo under seizure, as your gold does, and as you are not known in the transaction at all, it of course remains for settlement between the owner in London and the executors of Captain Pawson. As to your charging freight on the cordage from London to Coquimbo, it seems strange [**47]  indeed. Your ship was going in ballast, and Captain Pawson wrote to you that he would take merchandize, having found great difficulty in procuring the number of doubloons you ordered from Mr. Hortsman. I find that in 1816, you permitted Captain Pawson to take goods from other persons to make up his privilege in the ship, and as, by his agreement with the owner of the cordage, he was interested in the sales, it became, of course, a part of his venture from thence. It appears that Captain Pawson allowed you £  25 sterling in the account he furnished before he left London. Balance due to you £  3 10 11. £  50 sterling he laid out for cabin stores. The $ 55 83 claimed as commission for effecting insurance, you never charged in any similar case. I have not ascertained whether the expenses charged on the copper, are customary or not. You'll observe, that Captain Pawson's privilege in the ship was not taken by several thousand pounds weight, of course you will allow for the deficiency, as you have done before."

________________________________________________________________________________
Mr. John Donnell in account with the estate of the late Captain	
Dr.	John C. Pawson.	Cr.	
1819.	
Nov. 	To cash paid interest on		By balance due to	
18.	 16 shares United States		   you as per	
	 Bank Stock, hypothecated		   account	
	 for $ 1200 p. your		   furnished by	
	 receipt,	$ 108 00	   Captain Pawson,	
	Interest on do. from said		   in London,	
	  date until 15th October,		   including £  25	
	  1821,	12 36	   sterling, your	
	Compensation in ship		   proportion of	
	  Chesapeake as per		   passage money,	$ 15 75	
	  agreement, see your		   Cash on 16	
	  letter of instructions,		   shares United	
	  dated 18th Nov. 1819, and		   States bank	
	  as a proof of its being		   stock,	
	  customary, see 21 October,		   hypothecated	
	  1817, when Mr.		   for this	
	  Nancarrow went supercargo,		   amount, 18th	
	  $ 2000, and		   Nov. 1819,	1,200 00	
	  the 25th May, 1816,		   Interest on do.	
	  when Mr. Stith went		   from said	
	  supercargo, $ 3000,	2,000 00	   period, until	
	Wages of Capt. Pawson,		   15th Oct. 1821,	137 44	
	 as per your account,	750 00	   Insurance in	
	Dividend received on 16		   Maryland &	
	 shares United States		   Patapsco	
	 bank stock, as per your		   Offices, per	
	 account,	56 00	   your account,	374 14	
	Amount transferred by		   Amount of	
	 Edwards & Stewart, of		   copper and	
	 Coquimbo, a balance		   bullion	
	 due by them to Capt.		   (silver)	
	 Pawson; see your and		   shipped by	
	 their account,	7,777 87	   Edwards &	
	Amount deducted out of		   Stewart, for	
	 seamen's wages, as per		   account of	
	 your account,	70 59	   Captain Pawson,	
			   see their and	
			   your account,	4,694 56	
			   Balance in your	
			   hands on the	
			   15th October,	
			   1821,	4,352 97	
	
		$ 10,774 82		$ 10,774 82	
	
	To balance from	
	 opposite,	$ 4,352 97	
	To interest on ditto until	
	 paid,	
Errors and E Excepted.	Hamilton Graham, Actg Adm'r.	
	
	Add the stock on the other		   Claim as set up	
	 side, for which there is		   in court, viz.	$ 5,552 97	
	 no credit,	$ 1,200 00	 Drip Stones and	
		4,352 97	   duty saved,	48 06	
			Loss of Canton	
			privilege,	3,050 00	
	
	His claim then is	$ 5,553 97		$ 8,651 03	
	Interest to Jan. 26, 1825,	1,084 03	   Interest from	
			   Oct. 15, 1821,	1,686 94	
	
		$ 6,637 00		$ 10,337 97	
	Besides which he claimed	
	 loss of privilege,	255 52	
	Drip Stones,	13 50	
	Duty saved at Guasco,	14 56	
	Interest on $ 255 52-100,	49 72	
	
		$ 6,970 30	
________________________________________________________________________________

 [**48]  

"The defendant then offered in evidence the following invoice of goods shipped at London, the 27th of April, 1820, and the account of the sales thereof, and the other accounts and papers hereinafter inserted, which were admitted by consent.

________________________________________________________________________________
"1 bale, 8 cases British piece goods," &c.	
   amounting to	£  1062 10 8 	
Commission, brokerage, shipping, &c. 5 p. c.	53 2 7 	
	
	£  1115 13 3"	
________________________________________________________________________________

"Account sales of sundries made by Edwards & Stewart to the government of Chili, for account of Captain John C. Pawson, of the ship Chesapeake,

________________________________________________________________________________
1820	
Agt. 25.	45 coils cordage, wg. 113 qqs. 87 lbs.	
	   a 20 dlls.	$ 2277 03 1/2	
	 1 day and night glass,	30 00   	
	
		$ 2307 03 1/2	
Deduct commission 4 p. c. and spy glass,	122 02   	
	
Nett proceeds of cordage,	$ 2185 01 1/2	
________________________________________________________________________________

Dr. J. C. Pawson's private acc. with Edwards & Stewart, Cr.

This account commenced on the 25th of August, 1820, and ended on the 18th of January, 1821.

________________________________________________________________________________
The amount of the debits, including charges for	
  756 1/2 dozen Chinchilla skins, and 10 marks, 6 1/2 oz.	
 silver, &c.	$ 2,250 07 3/4	
Amount of credits including nett proceeds of sales	
 herewith sent, $ 8070 1 3/4,	10,028 06 3/4	
	
Balance due, and this sum credited John Donnell,	
 Esq.	$ 7,777 07   	
________________________________________________________________________________

 [**49]  

"Sales of sundry merchandize received by the ship Chesapeake, and sold by order and for account of Captain John C. Pawson."

The whole amount of sales, deducting charges, &c. $ 8070 13 1/4 dated Coquimbo, and signed by Edwards & Stewart.

________________________________________________________________________________
John Donnell, Esq. of Baltimore, in account	
current with Edwards	
Dr.   & Stewart.   Cr.	
1821.	
Jan. 19.	To bill of disbursements	
	  of the ship Chesapeake,	
	  at Coquimbo,	
	  per account herewith,	$ 2,508 03 3/4	
	Amount of invoice of	
	  8076 qqs. 19 lbs. of	
	  copper, shipped from	
	  this port in the ship	
	  Chesapeake, Captain	
	  Lane, as per account	
	  herewith,	117,106 04   	
	Balance,	32,655 05 1/4	
	
		$ 152,270 05 1/4	
	
E. & O. E. Coquimbo, Jan. 19, 1821.	
________________________________________________________________________________

________________________________________________________________________________
John Donnell, Esq. of Baltimore, in account	
current with Edwards	
Dr.   & Stewart.   Cr.	
1820.	
Aug. 28.	By our draught in favor	
	  of Capt. Brintnal on	
	  Captain Pawson,	$ 28,309 03   	
Sep. 16.	Cash received from do.	6,192 06   	
21.	Letter of credit of	
	  Messrs. Lynch, Hill &	
	  Co. in favor of Capt.	
	  Pawson,	3,500 00   	
Oct. 25.	700 doubloons received	
	  at $ 17 1/4	12,075 00   	
	2000   do   do   do	34,500 00   	
	1300   do   do   do	22,425 00   	
	Received for 4 bbls. of	
	  salt beef, a 35 dlls.	140 00   	
	Received for 4 water	
	  casks a 15,	60 00   	
	Months' advance made	
	  to a sailor returned,	24 03   	
	Cash received of him,	60 00   	
Nov. 27.	2000 doubloons a $ 17 1/4,	34,560 00   	
	Draught of Ed. M'Clure	
	  favor J. C. Pawson,	2,000 00   	
1821.	
Jan. 18.	Cash received for 2 bbls.	
	  tar, a $ 10,	20 00   	
	Do do 30 ggs. vinegar,	
	  a 50 cts.	15 00   	
	Discount on $ 6713,1 rrl.	
	  paid in the custom	
	  house in government	
	  paper, being this	
	  proportion allowed to be	
	  received in paper, the	
	  residue paid in cash,	
	  a 10 p. c.	671 02 1/4	
	Balance of Capt. Pawson's	
	  acct. current,	7,777 07   	
	
		$ 152,270 05 1/4	
	
	By balance,	$ 32,655 05 1/2	
	
Edwards & Stewart.	
________________________________________________________________________________

 [**50]  

________________________________________________________________________________
John Donnell, Esq. of Baltimore, in account with Edwards &	
Dr.	Stewart.	Cr.	
Amount of invoice of		By balance of account	
  copper and gold		  current at Coquimbo,	$ 32,655 05 1/2	
  shipped in Guasco,	$ 28,105 01 1/2	By 10 per cent.	
Amount of invoice of		  discount, allowed	
  copper and silver,		  on $ 1,777 paid in	
  shipped on acct. of		  government paper on	
  late Capt. Pawson,	4,694 4 1/2	  the invoice of	
To amount of bill for		  $ 28,105, a 1 1/2 rs.	177 05 1/2	
  disbursement in		By   do   do   on that	
  Guasco,	91 05 3/4	  of the late Captain	
		  Pawson,	14 04 1/2	
		By one months advance	
		  charged twice to	
		  Eugenio, merchant,	30 00   	
		By charge for drip	
		  stones not received,	13 04   	
	
	$ 32,891 03 1/2		$ 32,891 03 1/2	
	
E. E. Guasco, Jan. 22, 1821.	Edwards & Stewart.	
________________________________________________________________________________

Disbursements of the American ship Chesapeake, in the port of Coquimbo, by order of Captain Lane, from the 16th February to 30th June, 1821, amounting, including commissions, to $ 1,654 02 1/2. Dated at Coquimbo the 3d of July, 1821, and signed by Edwards [**51]  & Stewart.

________________________________________________________________________________
Captain Lane, ship Chesapeake, in account with Edwards &	
Dr.	Stewart.	Cr.	
To amount charges on		By 124 bars of copper,	
  2876 bars of copper,		  wg. 304 qqs. 24 lbs.	
  shipped on board the		  a $ 14 4-100, sold to	
  ship Esther,	$ 2,454 05 1/2	  pay the expenses at	
Do do on 300 bars		  the price of $ 12,	
  shipped on board ship		  and the duties,	$ 4,271 04	
  Chesapeake,	315 02 1/2	An error in the	
Amount of disbursements		  calculation of	
  of ship Chesapeake,	1,655 02 1/2	  commissions in the	
		  invoice of copper	
		  shipped at Guasco,	100 00	
		Cash recd. for 839 lbs.	
		  of bread a $ 6	50 02 3/4	
		  Balance,	3 03 3/4	
	
	$ 4,425 02 1/2		$ 4,425 02 1/2	
________________________________________________________________________________

"Amount of charges of 2100 bars of copper, discharged in this port, and 900 bars discharged in Guasco, from on board the American ship Chesapeake, Captain T. A. Lane, in order to ascertain the extent of injury, received on her passage from Guasco to Baltimore, of which bars of the same were reshipped by order of Captain Lane, on board the American ship Esther, Captain F. G. Low, bound for Baltimore,  [**52]  for account and risk of whom it may concern, and consigned to John Donnell, Esq. merchant, of Baltimore," amounting to $ 2454 05 1/4, dated at Coquimbo, and signed by Edwards & Stewart the 3d of July, 1821. This account included a commission on 2876 bars of copper, amounting to $ 1651 06.

"Account of charges of 300 bars of copper that were discharged from on board the American ship Chesapeake, in order to ascertain the extent of injury received on her passage from Guasco to Baltimore, and reshipped by order of Captain T. A. Lane, of said ship, for account and risk of whom it may concern, and consigned to John Donnell, Esq. merchant, Baltimore," amounting to $ 315 2 1/4, including commission on 300 bars of copper, amounting to $ 179 04 1/4. Dated and signed as above.

"Disbursements of the American ship Chesapeake, Captain John C. Pawson, at the port of Coquimbo, by Edwards & Stewart, amounting, including commission, to $ 2,508 03 3/4, dated the 19th of January, and signed by Edwards & Stewart.

An invoice of goods, &c. shipped by Edwards & Stewart, by order of Captain Lane, on board the Esther, whereof F. G. Low is master, bound to Baltimore, viz: 2876 bars of copper,  [**53]  weighing 5505 quintals, 98 pounds Spanish weight, being part of the original cargo of the ship Chesapeake, and shipped for account of whom it may concern, unto John Donnell, he paying freight, &c. Dated Coquimbo, 3d of July, 1821.

Also, the check of the defendant on the Office of Discount and Deposit, in favour of the owners of the ship Esther, for $ 14,453 20.

To dispense with a commission to take testimony the plaintiffs admitted, 1st. The transaction of cordage from London to Coquimbo, according to the account of sales of the cordage. 2. That the cordage was for the joint account of Pawson and Goddard. 3. That gold and silver bullion are prohibited articles of exportation at Chili. 4. The parties agreed that all letters and accounts of sales and accounts current, from Edwards & Stewart, may be read on both sides.

The defendant also offered in evidence, that the usual freight from London to Coquimbo, was fifty dollars per ton. The plaintiffs then offered in evidence, that it was the usage among ship owners and masters, not to charge freight where the ship was in ballast, for any articles shipped by the captain on his own account. The defendant offered in evidence,  [**54]  that there was no usage as above stated, and that the captain was liable for freight to his owner like any other person, if the owner chose to exact it.

1st. EXCEPTION. The defendant then prayed the opinion of the court to the jury, that upon the evidence above stated, the defendant is entitled to set off, in this case, the freight on the goods and merchandize, shipped by Captain Pawson, on his own account, from London to Coquimbo; which opinion the court [ARCHER, Ch. J. and WARD, A. J.] refused to give, but were of opinion, and so directed the jury, that the defendant is entitled to set off the said freight, unless the plaintiffs can shew by testimony, that there was a known and established usage that the captain, under the above circumstances, was not chargeable with freight, and that the said usage was so well known and established, that it must be supposed to have entered into the contemplation of the parties at the time they originally made the contract first herein before stated. The defendant excepted.

2. EXCEPTION. The defendant then prayed the court to instruct the jury, that according to the contract of the parties, as set forth in the correspondence exhibited [**55]  in the first bill of exceptions, the voyage as originally projected, to wit, from Baltimore to London, thence to Coquimbo, thence to Canton, and thence home to Baltimore, having been altered by the direction of the defendant, and the consent of Captain Pawson, so as to strike out the trip from Coquimbo to Canton, and give the ship a destination direct from Coquimbo home to Baltimore, the privilege originally stipulated for Captain Pawson to bring home twenty-five tons from Canton, clear of freight, was voluntarily relinquished by him, and exchanged for the privilege of bringing home his funds in copper from Coquimbo, and that, consequently, the plaintiffs are not entitled to any compensation for the alleged loss of the privilege of bringing home the twenty-five tons from Canton. Which instruction the court refused to give, but gave the following opinion and direction to the jury:

The court are of opinion and so direct the jury, that the plaintiffs are entitled to recover an equivalent for the loss they may prove their intestate to have sustained, by being deprived of his privilege from Canton or Batavia to the United States, in consequence of the change made by the defendant in [**56]  the destination of the vessel, unless the jury should be satisfied from the evidence, that the plaintiffs' intestate did, with a knowledge of his legal rights, waive the benefit of the privilege accorded to him at the commencement of the voyage, and did accept in lieu thereof a privilege from Coquimbo to Baltimore. The court further instruct the jury, that if they believe from the evidence that the plaintiffs' intestate shipped goods from London to Chili, on board the defendant's vessel, that the defendant is entitled to a credit for the freight thereof, unless the jury shall believe that there existed a definite general and well known usage, at the time of the commencement of the voyage, that freight, under the circumstance of this case, should not be charged by parties standing in the relation of the defendant to the plaintiffs' intestate. And further, unless the jury believe there was such a waiver and acceptance as is stated in the first part of this direction, on the part of the plaintiffs' intestate, that then the defendant is entitled to a reasonable freight for such articles as were shipped on account of, or which belonged to plaintiffs' intestate, from Chili to the United [**57]  States. The defendant excepted.

3. EXCEPTION. The defendant further prayed the court to instruct the jury, that if they believe that the contract made between the plaintiffs' intestate and defendant, was an entire contract for $ 2000, for the faithful performance of the duties of supercargo by Pawson, and a strict conformity to the instructions he should receive, that then the violation of his duty as supercargo by a departure from his instructions in taking on freight, prohibited articles, thereby putting the ship and the owner's interest therein, in jeopardy, was such an infringement of the entire contract, as took away from the plaintiff any right to demand the fulfilment of the same on the part of the defendant. Which opinion and direction the court refused to give. The defendant excepted.

4. EXCEPTION. The defendant then prayed the court further to instruct the jury, that according to the contract of the parties as set forth in the correspondence exhibited in the first bill of exceptions, the compensation of $ 2000 stipulated to be paid to Captain Pawson, as supercargo, had relation to the original voyage from Baltimore to London, thence to Coquimbo, thence to Canton,  [**58]  and thence home to Baltimore; and that the voyage having been shortened by striking out the trip to Canton, and making the destination of the vessel direct from Coquimbo to Baltimore, and Captain Pawson having, moreover, died at Coquimbo, in the course of the voyage, before he had completed the investment of the defendant's funds, that compensation is subject to abatement in the discretion of the jury on two grounds--First, for the alteration of the voyage, if the jury shall be of the opinion that the labour and responsibility of Captain Pawson were thereby lightened--Second, for that portion of the contemplated services of Captain Pawson, which were lost to the defendant by his death at Coquimbo. Which instruction the court refused to give, but were of opinion, and so directed the jury, that if they believed the evidence in the cause, the plaintiffs were entitled to recover of defendant a rateable proportion of the sum of $ 2060, which proportion the jury should ascertain by computing the time from the commencement of the voyage to Captain Pawson's death, and from his death until the duties of supercargo were completed by the signature of the bill of lading, for the homeward voyage,  [**59]  and that the jury may allow him as supercargo such portion of the said sum as they may deem him entitled to, for acting in said capacity, up to the time of his death, at Coquimbo, according to the rule above stated. The defendant excepted.

5. EXCEPTION. The defendant then prayed the court to instruct the jury, that, according to the contract of the parties as set forth in the correspondence exhibited in the first bill of exceptions, the compensation of $ 2000, stipulated to be paid to Captain Pawson, as supercargo, on the voyage originally projected, to wit, from Baltimore to London, thence to Coquimbo, thence to Canton, thence home to Baltimore, was one entire compensation to be paid for one entire service, on the return of Captain Pawson to Baltimore, and not subject to be apportioned by a part performance of the service, unless Captain Pawson had been prevented by the defendant from performing the residue thereof--that the voyage having been altered by the consent of the parties (as appears by said correspondence) by striking out that part of it which related to the trip to Canton, and directing the destination of the ship from Coquimbo to Baltimore, without saying any thing [**60]  of the aforesaid compensation to Captain Pawson, as supercargo, that stipulation attached upon the new voyage, precisely in the same manner in which it had been attached to the original voyage, that is to say, that it was one entire compensation for one entire service, not subject to be apportioned by a part performance of the service, and that consequently, the death of Captain Pawson at Coquimbo, in the progress of the voyage, and before the complete performance of the service, put an end to all claim on the part of the plaintiffs, to any part of the $ 2000. Which opinion and direction the court refused to give. The defendant excepted.

6. EXCEPTION. The defendant then prayed the court to instruct the jury, that in estimating the value of the privilege of twenty-five tons from Canton to Baltimore, which, according to the opinion expressed in the first bill of exceptions, the plaintiffs are entitled to claim in this action; if it was not relinquished and exchanged by Captain Pawson, by the privilege from Coquimbo, the jury should consider that privilege as having been subject to the contingency of the safe arrival of the ship at Canton, and the continuance of Captain Pawson's [**61]  life, and that either the destruction of the ship or the death of Captain Pawson at Coquimbo, in the course of that voyage, would have put an end to all claim by his representatives on account of this privilege. Which instruction the court refused to give, and instructed the jury that these contingencies ought not to enter into their calculation. The defendant excepted.

7. EXCEPTION. And the defendant further prayed the court to direct the jury, that the plaintiffs are not entitled to recover the said sum of $ 2000, nor any part thereof, under the evidence given in this cause. Which opinion and direction the court refused to give. The defendant excepted.

8. EXCEPTION. The defendant also prayed the court to direct the jury, that if the jury believe that Captain Pawson had actually purchased before his death, a sufficient quantity of copper, which, with the other property, purchased by Captain Pawson for account of the defendant, and afterwards put on board, was sufficient to exhaust the funds of the defendant confided by him to Pawson, that then the plaintiffs are not entitled to recover the compensation of $ 2000, mentioned in the letters of instruction of the defendant,  [**62]  unless the defendant received on board his ship a sufficient quantity of copper to exhaust his said funds. Which opinion and instruction the court refused to give. The defendant excepted.

9. EXCEPTION. The defendant further prayed the court to instruct the jury, that there is no evidence in the cause from which they can infer that Captain Pawson consented to the change of the original voyage from Coquimbo to Canton, and from Canton to the United States, and waived his privilege from Canton to the United States, through ignorance of his legal rights, the presumption of law being that, if he had full knowledge of the facts, he had full knowledge of his legal rights growing out of those facts. Which opinion and instruction the court refused to give. The defendant excepted.

10. EXCEPTION. In addition to the evidence stated in the preceding bills of exceptions, the plaintiffs offered in evidence, that the gold which was seized at Guasco, was purchased after the death of Pawson, and after all the copper which the said ship would bear, was actually purchased and loaded on board the said ship, and that the same was purchased with the very doubloons brought by Pawson for, and on account [**63]  of Donnell, from England, and which remained in possession of Edwards & Stewart, at the time of Pawson's death; and that the said gold was actually purchased by, and under the advice of Thomas A. Lane, acting as the captain--which said Lane was the mate of the ship, and succeeded to the command on the death of Pawson--that in the said proceeding Lane had no other authority from Donnell to act as his agent than what was derived from his succeeding Pawson as captain of the ship, and was acting under the instructions of Donnell to Pawson before mentioned. The plaintiffs then prayed the opinion of the court to the jury, that if the jury find from the evidence, that the gold which was seized and lost at Guasco, after the death of Pawson, was purchased by Edwards & Stewart after Pawson's death, with the separate funds of Donnell, and on his account, and shipped accordingly, without any power or authority from Pawson to do so, that then the defendant is not entitled to set off the value or cost of the gold against the claim of the plaintiffs in this suit. Which opinion the court refused to give. The plaintiffs excepted.

11. EXCEPTION. The defendant further prayed the court to instruct [**64]  the jury, that, according to the orders of the defendant, assented to by Captain Pawson, as set forth in the correspondence exhibited in the first bill of exceptions, it was the duty of the said Pawson, as the supercargo and agent of the defendant, to invest all of the defendant's funds in copper at Chili, if copper could be had, and to bring the same home, and deliver it to the defendant in Baltimore; and if, in these circumstances, Pawson holding both the defendant's funds, and his own, after having purchased and put on board the ship Chesapeake, copper equal to the amount of the defendant's funds, thought proper, for any reason, to make an investment in gold or silver, and did, during his life, make such investment; or, if his agents, Edwards & Stewart, succeeding to the possession of those joint funds, did, after copper had been purchased and put on board equal to the amount of defendant's funds, make any such investment in gold or silver, and if such gold and silver was afterwards seized by the government of Chili, and confiscated, as having been attempted to be exported, contrary to the laws of the country, that the loss must be borne by Pawson and his representatives, and cannot [**65]  be thrown on the defendant. Which opinion and instruction the court gave. The plaintiffs excepted.

12. EXCEPTION. The defendant further prayed the court to instruct the jury, that if, upon the whole evidence in the case, they shall be of opinion, that copper was brought home, equal to the whole amount of the funds of the defendant, and equal to Pawson's privilege in copper, (as he was willing to accept it) that the plaintiffs are not entitled to recover of the defendant, the amount of any gold or silver which Pawson or his agents, Edwards & Stewart, may have put on board the Chesapeake, of their own accord, and without the knowledge, consent, or orders of the defendant, and which may have been afterwards seized by the government of Chili, and confiscated, as having been attempted to be exported, contrary to the laws of the land--and that the defendant's having received from Captain Lane, the successor of Captain Pawson, in the command of the Chesapeake, the letters and invoices sent to him by Edwards & Stewart, is not, under the circumstances of the case, such a ratification of the act of purchasing and putting on board such gold and silver, as to throw the loss of it upon the [**66]  defendant, and to authorize the plaintiffs to recover it from him in this action. Which opinion and instruction the court gave. The plaintiffs excepted.

Verdict and Judgment for the Plaintiffs for the sum of $ 5510 43. From which judgment both parties, the plaintiffs and defendant, appealed to this Court.  

DISPOSITION:
JUDGMENT REVERSED AND PROCEDENDO AWARDED.  

HEADNOTES:

It is the unquestionable and exclusive right of the Jury to decide on facts, of the existence of which, contradictory testimony is adduced.

The owner of a ship and cargo has the uncontrolled power of breaking up, or changing the voyage.

The principles which should govern such cases, in the absence of all commercial usage on the subject, and by which the effect of its action on the contract of the ship master or supercargo with the ship owner, is to be determined, are

1st. If by the exercise of this privilege a special injury is done to either, the ship owner must bear the loss, and make a reasonable indemnity.

2. If by the change of the voyage, the captain or supercargo be necessarily discharged from the performance of all the duties, for which a remuneration has been stipulated, his claim to such remuneration is thereby extinguished.

3. If a part of the duties have been executed, then such a proportion of the stipulated compensation should be allowed, as appears just on comparing the services rendered, with those which remain unperformed. For the interpolated part of the voyage, the usual compensation must be paid. The parties should be placed, as nearly as may be, in the same condition in which they would have stood, had a previous contract for the voyage as changed, been entered into between them. To all the customary emoluments of a captain, or supercargo, on such a voyage, are those officers respectively entitled.

A ship master, who was also the supercargo, was directed to proceed with his ship to several ports; his compensation, in addition to monthly wages, was a sum certain, with a privilege of bringing home a specified quantity of merchandize from one of such ports. After a part performance of the voyage, the ship owner changed its direction, and shortened it; so that the port at which the privilege might have been exercised, was not visited by the ship; before the termination of the voyage, the ship master died. HELD that the privilege was so inseparably connected with the vessel's destination to the particular port, at which it was to have been exercised, that upon its ceasing to be one of the termini of the voyage, the privilege of necessity expired, and that the sum certain stipulated to be paid the captain had relation to the voyage as originally contemplated, and was therefore subject to abatement, in the discretion of the Jury. First, for the alteration of the voyage, if they believed, that the ship master's labour and responsibility were thereby lightened; and, secondly, for that portion of his contemplated services, which were lost by his death.

The misconduct of a captain or supercargo, which produces neither injury nor inconvenience to his employer, forms no defence to the payment of his wages.

The consignees selected by ship master or supercargo in a foreign port, according to the usual course of trade, and in good faith, are so the agents of the owners of the ship and cargo, that upon the death of the captain or supercargo, his representatives are not responsible for the consequences of the neglect or misconduct of such consignees, in the execution of their agency after his death not imputable to instructions given in the life of such captain or supercargo.

A shipment of merchandize, whose exportation is prohibited, made by a supercargo for account of his principal, is at his own risk, and if seized and condemned at the place of exportation, the supercargo must bear the loss.

The acceptance by a ship owner of the letters and invoices sent to him by the consignees of his ship in a foreign port, is not such a ratification of the acts of those agents, as would throw a loss arising from the seizure of merchandize exported against the laws of the port of shipment by them, for his account, upon such ship owner. 

COUNSEL:
Williams, (District Attorney of U. S.) for Pawson's administrators, the appellants in the first appeal, contended in argument on the three bills of exceptions taken on the part of the plaintiffs below, viz: the 10th, 11th, and 12th bills of exceptions.

1. That the gold, which was seized at Guasco, and there condemned, having been purchased by Edwards & Stewart, after the death of Pawson, without his authority, but with the advice of his successor, Captain Lane, and with the money of the defendant, ought not to be charged to Pawson, nor the cost thereof deducted out of his funds.

2. That Pawson ought not to bear the loss of the gold, purchased, seized and condemned as aforesaid. 1st. Because he was not bound to invest all the defendant's money in copper, to the exclusion of his own funds. 2d. Because he did not purchase [**67]  any gold in his lifetime;--and, 3d. Because Edwards & Stewart were not his agents, after his death, so far as regarded the defendant's funds, but were in that respect, the defendant's agents.

3. That Edwards & Stewart, being, after Pawson's death, only his agents, or the agents of his representatives, for the funds of Pawson in their hands, and being the agents of the defendant, for the funds of his in their hands, and Pawson having a co-equal right with the defendant to have his funds invested in copper; and the said agents having actually invested a part of the defendant's funds in gold, and none of Pawson's in that article, the loss of the gold is the defendant's, and not Pawson's representatives.

On the second point he referred to 2 Liv. on Agency, 298. 1 Liv. on Agency, 261 to 278. Taylor vs. Plummer, 3 Maule and Selw. 562. 2 Liv. on Agency, 281.

C. C. Harper for Donnell, the appellee in the first, and the appellant in the second appeal, stated that for the appellant in the second appeal, it would be contended,

1. That no usage can, in such a case, be permitted to be engrafted upon, or to control a written and express contract so plainly and unambiguously set [**68]  out. This point arises under the first, and a part of the second bills of exceptions.

2. That the privilege from Canton depended entirely upon the voyage to Canton, which was within the control of the defendant below, as owner of the ship; that this privilege was expressly waived by Pawson for an equivalent, with knowledge of his legal rights; and that, with knowledge of the facts, ignorance of his legal rights was no excuse. This point embraces a part of the second bill of exceptions.

3. That Pawson's acceptance or non-acceptance of the new voyage, and substituted privilege, was a question of law, and that the court ought to have construed the writings under which the question of acceptance arose, and not have left it to the jury. This point embraces also a part of the second bill of exceptions.

4. That the record affords no evidence of any ignorance of his legal rights, and that the court ought so to have directed the jury, as prayed in the ninth bill of exceptions, and erred in refusing such direction. This point embraces the ninth bill of exceptions.

5. That the $ 2000 agreed to be paid as compensation to Pawson, depended on the performance of the entire voyage,  [**69]  and on his return to Baltimore, which were conditions precedent. This point embraces the third, fifth, and seventh bills of exceptions.

6. That if the whole $ 2000 cannot be recovered, there cannot be an apportionment, and no part of it can be recovered. This point embraces the same bills of exceptions in part.

7. That Pawson, by departing from the instructions of the defendant, (the owner of the ship he commanded, and in whose employ he was) and by his other misconduct, as detailed in the record, lost his right to demand the compensation of $ 2000, or any part thereof. This point embraces the same bills of exceptions in part.

8. That the court below having pronounced an opinion that there could be an apportionment of the compensation of $ 2000, they erred in directing the jury not to allow any abatement by reason of the shortening of the voyage, or the death of Pawson, and they also erred in fixing the "date of the signature of the bill of lading for the homeward voyage," as the period at which his duties as supercargo, were completed. This point embraces the fourth bill of exceptions.

9. That if the privilege from Canton did not depend entirely on the voyage to [**70]  Canton taking place, and the defendant was liable to Pawson for the loss of the original voyage and privilege surrendered by him "under a mistake of his legal rights," then the jury, in estimating the value of the privilege so surrendered, ought to have taken into their calculation the possible death of Pawson, or the possible loss of the ship before she reached Canton, and the court below erred in refusing such direction to the jury as prayed by the defendant in the sixth bill of exceptions.

10. That if Pawson had actually purchased, before his death, an amount of copper, which, with the other property purchased for the defendant, and put on board, was sufficient to exhaust the funds of the defendant, confided to Pawson by him, that then the plaintiffs below were not entitled to recover the $ 2000, unless the defendant received on board his ship, a sufficient quantity of copper to exhaust his funds, and the court below erred in not so directing the jury, as prayed for by the defendant below, as stated in the eighth bill of exceptions. Under this point, the defendant (now appellant) contends, that Pawson was special agent for the purchase of copper; that if he was general agent,  [**71]  he violated his duty by not using a sound discretion; that Edwards & Stewart were his agents; and that the gold and silver belonged to him.

11. The appellant will also contend, under the eight bill of exceptions. 1st. That independent of the hypothetical assumption in the prayer upon which this exception is founded, the fact that a surplus of copper (over and above all the defendant's funds, and over and above the 147 quintals delivered to Pawson) remained in the ship, is proved by the evidence in the record. 2d. That the ship was sent, and Pawson employed for a special purpose; that she was not a general ship, and therefore Pawson could not take in goods for other persons, or interfere with the owner's arrangements, and thereby throw a loss upon the owner. 3d. That if he could so use the ship as to bind his owner to third persons, the owner might set off the compensation of $ 2000 against such loss.

On the second point he cited 1 Liv. on Agency, 150, 151. Doct. and Stud. ch. 26, page, 79; ch. 46, page, 253. Lowry vs. Bourdieu, Dougl. 471, (455.) Lammott vs. Bowly, 6 Harr. & Johns. 520.

On the fifth point, Portage vs. Cole, 1 Saund. 320 (note 4.) Furnival vs. Crew, 9 Mod. 455, 459.

On [**72]  the sixth point, Cutter vs. Powell, 6 T. R. 320. Cook vs. Jennings, 7 T. R. 381.

On the tenth point, East India Company vs. Hensley, 1 Esp. Rep. 111. Fenn vs. Harrison, 3 T. R. 757. Gibson vs. Colt, 7 Johns. Rep. 393. Prince vs. Clark, 8 Serg. & Low, 54. Esp. Evid. 64. 1 Com. on Cont. 237. 2 Liv. on Agency, 298.

R. B. Magruder on the same side. On the first point he cited Poth. on Mar. Cont. 13, 14, 32, 135. Abbott on Shipping, 137, (119) 557. 3 Stark. Evid. 998, 1036.

On the third point, Macbeath vs. Haldimand, 1 T. R. 180, 182 Ferris vs. Walsh, 5 Harr. & Johns. 308.

On the fourth point, Key's Exr. vs. Parnham, 6 Harr. & Johns. 418. Davis vs. Davis, et al. 7, Harr. & Johns. 36.

On the seventh point, Abbott 183. Montgomery vs. Wharton, 2 Peters' Adm. Rep. 401. 1 Com. on Cont. 221, 222, 225, 230, 235. Robinson vs. Hindman, 3 Esp. Rep. 235.

On the eighth point, Abbott 482.

On the ninth point, Pothier 135.

On the eleventh point, Abbott 119, 1 Com. on Cont. 221, 222. Campbell vs. Thompson, 2 Serg. & Low, 481, (1 Stark. Rep. 490.) Locke vs. Smith, 10 Johns. Rep. 250. The act of 1785, ch. 46 and 47. Clarke vs. Magruder, 2 Harr. & Johns. 77. McFadon [**73]  vs. Baltimore Insurance Company, 4 Harr. & Johns. 45.

Williams, (District Attorney of the U. S.) in reply to the argument of the counsel of Donnell, on the bills of exceptions taken by him, and which constitute the subject of the second appeal, on the first bill of exceptions, he cited 3 Stark. Evid. 1038 2 Stark. Evid. 453, 454, 447, 452. Birch vs. Depeyster, 2 Serg. & Low. 359. (1 Stark. Rep. 210.) Senior vs. Armitage, 3 Serg. & Low, 71. Cutter vs. Powell, 6 T. R. 320. Zagary vs. Furnell, 2 Camb. 240. Renner vs. Bank of Columbia, 9 Wheat. 582. Jackson vs. The Union Bank of Maryland, 6 Harr. & Johnson, 146. Bank of Columbia vs. Magruder's Admx. Ibid. 172, 180. Phill. on Ins. 18. Park, 589, 630. Marsh. 226, 259, 270, 365, 375, 707. Trott vs. Wood, 1. Gall. Rep. 444. Winter vs. Brockwell, 8 East. 308.

On the eighth bill of exceptions, Peake's Evid. (Norris's Ed.) 416. Winchester vs. Hackley, 2 Cranch 342. 2 Stark. Evid, 642, 643. Farmsworth vs. Garrard, 1 Campb. 38.

On the third bill of exceptions, 1 vol. Laws of U.S. 272.

On the fourth bill of exceptions, Etting vs. Bank of United States, 11 Wheat. 75. 1 Liv. on Agency, 69 to 180. 2 Liv. on Agency 214, 215. Kendrick [**74]  vs. Delafield, 2 Cain's Rep. 67, 72. The United Insurance Company vs. Scott and Seaman, 1 Johns. Rep. 111, 115. Abbott 270. Thorne vs. White, 1 Peters. Adm. Rep. 176 (note.) Rice vs. The Polly and Kitty, 2 Peters Adm. Rep. 420.

On the fifth bill of exceptions, Cutter vs. Powell, 6 T. R. 320. Abbott, 427. Hart vs. The ship Littlejohn, 1 Peters Adm. Rep. 115, 118, 119, 121. Pothier 116, 117, 118. Pordage vs. Cole, 1 Saund. 320 (note 4.) Campbell vs. Jones, 6 T. R. 570. 2 Stark. Evid. 642. 1 Pow. on Cont. 267.

On the second bill of exceptions, Laidlaw vs. Organ, 2 Wheat. 178, 183, 195. Etting vs. Bank of United States, 11 Wheat. 75. 1 Liv. on Ag. 71. M'Intyre vs. Bowne, 1 Johns. Rep. 238, 259. Lammott vs. Bowly, 6 Harr. & Johns. 522, 524.

On the ninth bill of exceptions, Lammott vs. Bowly, 6 Harr. & Johns. 522, 524, 1 Stark. Evid. 399. Etting vs. Bank of United States, 11 Wheat. 76.

On the sixth bill of exceptions, Etting vs. Bank of United States, 11 Wheat. 75, Abbott, 489, 434. Val. Com. tit. 4 art. 3, 2 Bro. C. & A. L. 533. Pothier 120, 126. Nap. Code, art. 250. Morrison vs. Galloway, 2 Harr. & Johns. 461 to 468. Sigard vs. Roberts, 3 Esp. Rep. 71. Knight vs. Crockford,  [**75]  1 Esp. Rep. 192, 193. Campbell vs. Jones, 6 T. R. 570. Hoyt vs. Wildfire, 3 Johns. Rep. 518. Sullivan vs. Morgan, 11 Johns. Rep. 66.

The causes were then postponed, and by agreement, written arguments of the counsel were to be submitted to the court; and the following were accordingly submitted.

Taney, (Attorney General) for Pawson's administrators. In the case now under discussion, (the one in which Donnell is appellant,) it will be found that there are three subjects in controversy between the parties.

1. Is Donnell entitled to charge freight on the goods of Pawson, shipped "on his own account" from London to Coquimbo?

2. Are Pawson's administrators entitled to recover any part of the $ 2000, mentioned in Donnell's letter of November 18, 1819? And if they are entitled to recover a part, what proportion are they entitled to recover, and by what rule is that proportion to be ascertained?

3. Are the administrators of Pawson entitled to recover compensation for the privilege of twenty-five tons, from Canton to Baltimore, stipulated in Donnell's letter of November 18, 1819, and of which Pawson was deprived by the act of Donnell, in changing the voyage originally [**76]  contemplated?

The defendant below has brought up nine exceptions, and each of them will be found to relate to one of the items abovementioned, and to involve some of the questions there stated. Instead, therefore, of taking up the exceptions, in the order in which they are set forth in the record, they will be classed and considered in this discussion, according to the above arrangement.

First point.--Is Donnell entitled to charge freight on the goods and merchandize shipped by Pawson, on his own account, from London to Coquimbo.

This question is presented by the prayer of the defendant, and the opinion of the court in the 1st exception. The same principle is again decided in the 2d exception.

The whole course and objects of the voyage contemplated, when the vessel sailed from Baltimore, are detailed in the letter of Donnell, of November 18, 1819, and the alterations afterward smade, will be found in his letter of December 26, 1819.

According to both letters, the ship was to proceed in ballast from London to Chili. The amount of goods shipped by Pawson, and his motives for this shipment, will be found in his letter. "In consequence," says Pawson, "of the scarcity [**77]  of doubloons, I have thought it adviseable to invest my own funds in merchandize, in hope that it may do as well, and because I would not interfere in any manner with your business." See also his letter of April 27, 1826.

It is admitted, that the contract between Donnell and Pawson was in writing, but the whole of the written contract is not before the court. It was contained in part in the shipping articles, and in part in the letters of Donnell before referred to. In the admissions, the monthly pay of Pawson as stipulated in the shipping articles, is stated:--but what else is contained in that paper does not appear. It belonged to the ship, and on her return to Baltimore, must, with the other papers of the vessel, have fallen into the hands of Donnell. It is not suggested in the record, that this document has been lost or mislaid. Why it was kept back, is not explained, nor is it necessary now to inquire. But while Donnell withholds the paper, and gives no proof of its contents, he cannot be allowed to say that the usage relied on by the plaintiffs, is contrary to, or inconsistent with other provisions contained in the agreement. So far as the contents of the writings are before [**78]  the court, they are silent as to the privilege claimed under the usage, and certainly contain no stipulation in opposition to it, or inconsistent with it. They do not say that Captain Pawson may, or that he may not ship goods on his own account from London to Coquimbo. And if goods should be shipped by him, they do not say whether he shall, or shall not pay freight. The contract, as we are allowed to see it, is silent on this subject.

The writing being silent in relation to the right in question, the first enquiry is, can the known and established usage of trade, annex to this contract as incident to it, a right in the captain to ship the goods herein before mentioned, free from freight? This inquiry involves two questions. First, can the known and established usage of trade give to either of these parties a right, not stipulated in the writing? Secondly, if usage may give such a right, is the usage in question a reasonable usage, or is it unreasonable, and therefore illegal and void?

Upon the first of these questions the appellee insist, that in a commercial contract, custom and usage may superadd a right to either of the parties, concerning which the written contract between [**79]  them is silent.

This principal of law is a familiar one, and the authorities to maintain it numerous and undisputed. The court are referred to a few of them, where the principle is clearly and distinctly set forth. 3 Stark. Ev. 1038. Bank of Columbia vs. Magruder, 6 Harr. & Johns. 180. Renner vs. Bank of Columbia, 9 Wheat. 581. The rule, and the reason of the rule, is so well stated in Stark. Ev. 1038, that the passage is transcribed for the court--"In many instances extrinsic evidence of custom and usage is admissible for the purpose of annexing incidents to the terms of a written instrument concerning which the instrument is silent. The principle upon which such evidence is admissible, seems to be a reasonable presumption that the parties did not express the whole of their intention, but meant to be guided by custom as to such particulars as are generally known to be annexed by custom and usage to similar dealings. It is evident that in commercial affairs, and all the other usual and common transactions of life, it would be attended with great inconvenience that the well-known ordinary practice and usage on the subject should not be tacitly annexed, by virtue of such a presumption,  [**80]  to the terms of a contract, and that the parties should either be deprived of the certainty and advantage, to be derived from the known course of dealing, or be placed under the necessity of laboriously specifying in their contracts by what particular usages they meant to be bound."

Indeed even in the case of a sealed instrument, in which parol evidence is much more reluctantly admitted, than in the cases of commercial contracts, usage may be given in evidence to superadd a right not granted by the terms of the deed itself, and about which the deed is silent. Wiglesworth vs. Dallison, Doug. 196, 197. This case was that of a lease by deed; and usage was received in evidence, and permitted to engraft on it an additional right to the tenant, not mentioned in the deed. It was a right which by the force of usage grew out of the relation of landlord and tenant, and was a consequence of that relation which the deed had created. So here usage may engraft on the contract an additional right to the captain not mentioned in the written instruments, but which by the force of usage grows out of the relation of owner and captain, and is a consequence of that relation. In the language in 3 Stark.  [**81]  Ev. 1038, before quoted, it is annexed as an incident to the terms of the contract.

The same principle is recognized in Senior vs. Armitage, 3 Serg. & Low, 71, 72, where Baron Thompson says, "that as to the special agreement in order to control the custom, it must be of such a nature, that it operated upon and prevented in express terms the custom from attaching." But it is said on behalf of the appellant, (and much stress seems to be laid on the circumstance,) that the written contract in this case is "express," and is "plainly and unambiguously" set out. And it is insisted, that evidence of usage is admissible in those cases only, where the written contract is ambiguous and doubtful in its terms. It would be a sufficient answer to this argument to say, that it cannot be predicated of this contract, that it is plainly and unambiguously set out in the writing. It has been already remarked, that the whole written contract is not before the court; that the shipping articles, a very material, and in this point, the most material part of the contract are not produced. They must be presumed to be in the possession of Donnell, and surely while he withholds the writing itself, he can [**82]  hardly be permitted to rely on the clearness and perspicuity of its language, in order to bar the claim of the plaintiffs. It is suggested indeed in the argument, that the shipping articles were in the usual printed form, and Abb. on Ship. 557, has been referred to by the counsel for the appellant, to prove that the language of the usual printed form of shipping articles is express, plain and unambiguous. It need only be answered, that there is no proof to support the suggestion. The shipping articles may have been in the usual printed form; but there is no proof of it. No argument, therefore, can be founded on the assumption of that fact. But let us waive this objection to the argument of the appellants and concede, argumenti gratia, that the shipping articles were in the usual printed form. The language then is plain and unambiguous: the instrument is silent as to the privilege in question. More than this, the appellant can hardly demand in behalf of the written contract. It is denied that the power of usage to annex a new incident to a contract, and to give a right not mentioned in the contract to one of the parties, is in any degree dependent on the perspicuity, or on the ambiguity [**83]  of the language used in the writing. It depends on the silence of the written contract, in relation to the incidental right claimed. The writing may be express, plain and unambiguous, in all the stipulations contained in it, and yet an additional right may be superadded by the force of usage, concerning which the contract is silent.

In the case of Wigglesworth vs. Dallison, in Doug. 196, 197, the deed was plain and unambiguous in all of its provisions, yet usage superadded an additional right to the tenant, beyond those granted by the deed. And the same principle is also clearly set forth in 3 Stark. Ev. 1038; and 3 Serg. & Lowb. 71, 72, before referred to, and made to depend on the silence of the writing, and not upon the perspicuity of the language, and the plainness of the stipulations contained in the deed. What can be more plain than an ordinary promissory note? Yet even local usages, brought home to the knowledge of the parties, may superadd to it four or five days of grace. It follows, therefore, from the authorities above mentioned, that inasmuch as the written contract is silent as to the privilege in question, it may be superadded by usage. The opinion of the court hypothetically [**84]  assumes, that the usage was established by proof, and leaves it to the jury to say, whether or not it was so established by testimony.

It is not understood that the appellant objects to the opinion upon the ground that the court left it to the jury to find from the testimony, whether there was such a known and established usage as the appellees alleged. There was evidence for and against this usage; and in this state of the case, it is not contended by the appellant, that the existence of the usage was a question for the court, and not for the jury. If such an argument should be offered, the following authorities conclusively shew, that it was a fact to be tried by the jury, and not by the court. 2 Stark. Ev. 452. Bank of Columbia vs. Magruder, 6 Harr. & Johns. 180. Many others might be cited, but it is unnecessary to multiply cases upon a point not to be controverted. In the preceding discussion, the power of custom and usage is limited to cases where the written contract is silent, as to the right which the force of usage is invoked to sustain. But it has been extended much further in commercial contracts. There it is called in to aid in the construction of written instruments.  [**85]  Cutter vs. Powell, 6 T. R. 320. Abb. on Shipp. 213. (note.)

In the first of these two cases the Judges declare, that if a usage could be proved, they would expound the contract according to the usage, although it appears that such an exposition would have given to the contract a different meaning from that which, in their judgment, the writing imported. In other words, the usage would have controlled, the language of the written contract. In the case in Abbot above referred to, the usage was in opposition to the express words of the written contract, and yet the usage prevailed. The last mentioned case is indeed questioned by Starkie in the note, 3 vol. 1038, and perhaps it goes farther than any other decision on the subject. Yet, the judgment of Lord Kenyon on such a point, sanctioned as it would seem to be by Chief Justice Abbot, is entitled to high respect. We are not called upon to define the exact limits of the power of usage on commercial instruments. It is sufficient for us that the contract in this case is silent, as to the privilege or right claimed by the appellees; and if there were no other cases on this subject, but those in relation to bills of exchange and promissory [**86]  notes, they would be abundantly sufficient to maintain the position for which we are contending. The words of these instruments are plain and unambiguous. Yet common usage constantly annexes to them the incident of the three days of grace. Three days of grace are the right of the debtor, and this right is superadded by the force of usage to the words of the instrument. Indeed, so omnipotent is the power of usage on commercial instruments, that although three days of grace, and no more are annexed by law as an incident to every instrument of this description, yet a mere local usage, when brought home to the knowledge of the parties, is sufficiently powerful, not only to superadd a right, but to vary it from the right which the law annexes. Renner vs. Bank of Columbia, 9 Wheat. 581. Bank of Columbia vs. Magruder, 6 Harr. & Johns. 180.

It may be therefore concluded, that, inasmuch as the contract is silent in relation to the privilege in question, evidence was admissible, to show that by the usage of trade Captain Pawson had a right to ship his goods free from freight. And if the usage was established by proof, it was a part of the contract and as binding on the parties, as if it [**87]  had been introduced into the writing. In the language of the court, in Bank of Columbia vs. Magruder, 6 Harr. & Johns. 180, it enters into the contract, and becomes a constituent part of it.

Whether the usage was proved to the satisfaction of the jury, does not appear; nor is it material in this part of the controversy. The opinion of the court is founded on the hypothesis, that the jury should find from the testimony, that the usage was a known and established one, and that "it was so well known and established, that it must be supposed to have entered into the contemplation of the parties at the time they originally made the contract." And if we have succeeded in establishing the rule of law before stated, then the opinion of the County Court is free from error, and ought to be affirmed, unless the usage in question is unreasonable, and therefore illegal and void. This brings us to the second question before mentioned.

2. Is the usage alleged by the appellees a reasonable usage, or is it unreasonable, and therefore illegal and void?

This point assumes, that the custom is proved to be a known and established one. The appellant contends, that although it be proved to [**88]  the satisfaction of the jury, that the captain under the circumstances stated in the record, was not chargeable with freight according to the usage of trade:--And, although this usage of trade "was so well known and established, that it must be supposed to have entered into the contemplation of the parties, at the time they originally made the contract." Yet the usage so known and established, and so proved is unreasonable, and therefore illegal and void. This objection does not question the power of usage to give additional rights to the captain, not mentioned in the contract, it merely denies its power to give the particular privilege claimed. The objection applies to the nature and character of the usage, which is pronounced to be unreasonable, and on that account alone illegal and void.

It is difficult to imagine how a usage proved to be as well known and established, as the opinion of the court requires, could be unreasonable. Men are not apt to enter voluntarily and continually into contracts, contemplating upon every occasion an incident to the contract, which will subject them to unreasonable imposition. The opinion of the court requires, that the usage shall be so well [**89]  known, that the appellant must be presumed to have looked to it when he bargained. Unless it was proved to this extent, the jury could not regard it, and were indeed forbidden to regard it.

The usage in question then could not have been proved, unless there had been a general concurrence and consent among the ship owners of Baltimore, for a length of time, sufficient to make it an established custom. It can scarcely be credited, that any class of men, would so long unite together in building up a system of dealing, unreasonable and unjust to themselves. And no class of men are less likely to commit such a folly, than the merchants. The mere fact, therefore, that it had become a known and established usage, is powerful evidence, that it must have been found by experience to be convenient and useful to both parties. Yet it is not necessary for us to prove the usage reasonable; the appellant must prove it to be unreasonable.

"A custom may be good although the particular reason of it cannot be assigned, for it sufficeth if no good legal reason can be assigned against it."--2 Stark. Ev. 447, and the authorities there cited.

But is there any thing unreasonable in the usage [**90]  alleged? Can any good reason be assigned against it? The counsel for the appellant have indeed urged, that if the usage in question were established, a captain might load the ship on his own account, contrary to the owner's wishes--that he might take goods for others for his own profit, or to the injury of the owner--that he might take contraband articles, and thereby subject the ship to seizure--that he might fill the ship with passengers, and that those passengers might, by being belligerent in regard to some other nation, subject the owner to the loss of his ship, or might in some other way do him irreparable injury.

It is an easy matter to fancy a usage that would be full of evil, and then point out the evils which would spring from it. It will be far more difficult, however, to find them in the custom sanctioned by the County Court. It authorizes none of the acts above mentioned, and permits no injury to the owner in any shape. The usage in question is confined in express terms to the goods shipped by Captain Pawson on his own account. It does not extend to any other goods, and does not embrace the goods shipped by Goddard, or by any other person but the captain himself.  [**91]  It does not authorize him to take goods for another, either on freight, or free from freight. The court have not decided that any usage would deprive Donnell of the right to charge freight on the goods shipped by Goddard.

The court have not said that any usage would justify him in taking one or more passengers, either for his own profit or the profit of his owner. It is not meant to question the validity of a usage, to take a reasonable number of passengers who would not encumber the ship: but we desire to shew that no question upon that subject is involved in the opinion now under discussion. The usage, of which the court speaks, relates to the goods shipped by Captain Pawson on his own account; and not to the passenger from London to Chili, nor to the goods of Goddard.

The usage in relation to the captain's goods is also confined to the circumstances of the case before the court. There must have been, says the court, a known and established usage that the captain "under the above circumstances, was not chargeable with freight." They do not speak of a usage extending further, or giving a right under any other circumstances, or to any other extent.

And what were the [**92]  "above circumstances" to which the court limited their opinion? The ship was to go in ballast--the space occupied by the goods would have been vacant--the amount shipped was within the reasonable compass of his private and separate trade--it interfered with none of the owner's plans--did not delay the ship--did not impede her voyage, or in any respect do injury to the owner, or put to hazard his property, or interfere with his plans of commerce--and the captain was induced to take these bulky articles in order the better to promote the views and the interest of the owner, and did thereby promote them. His original design was, it would seem, to take doubloons, upon which it will hardly be contended that freight would have been chargeable; he changed his intention, because he would not go into the market to compete with his owner, or take from the quantity the owner desired to procure. Is there any thing unreasonable in a usage that, under such circumstances, the captain is not chargeable with freight? It would rather seem that he must be a most unreasonable owner who would demand it. It surely does not work injustice.

The counsel for the appellant have cited Pothier on Mer. Cont.  [**93]  14, 32 and 135, to prove that the owner is entitled to the use of the whole ship, and that, by an express article of the French commercial code, the captain can take nothing without paying freight, except what he may put in his chest. The authority cited is certainly entitled to very high respect on all questions of commercial law. The right of the owner to dispose of his vessel as he pleases is not disputed on our part; and it depends upon his will whether the goods may or may not be taken on board, and whether freight shall or shall not be charged. And it is because he has this absolute dominion over the freight that he may grant to the captain, or any one else, the right to take goods free from freight. If by express written contract he had given the privilege in question to the captain, nobody would doubt the validity of the grant; and if by the force of usage, the privilege is an incident to the contract, then such usage enters into the essence of the contract, and becomes a constituent part of it. It is as obligatory upon the parties as if it had been set forth in the writing. The privilege then is derived from the contract of the owner himself. In other words, it is granted [**94]  by him. It is not, therefore, inconsistent with his rights, but is created by the exercise of his rights. It cannot be illegal and void on that account, for the owner may, by his contract, lawfully grant it. The usage therefore is not inconsistent with the right of property in the owner.

Neither is it unreasonable and void, by reason of its being against law. If we had a positive legislative enactment like the French ordinance in Poth. 135, relied on by the appellant, then any usage in opposition to the statute would be illegal and void. But we have no statute against it; nor have we any judicial decision against it; nor is it inconsistent with any principle of law. Pothier's work is very high evidence of commercial usages, because most of the principles, contained in the ordinances, have been adopted as usages of trade by the commercial world. Still it is nothing but evidence, and not conclusive evidence. All of the ordinances have not been adopted, and they are binding in so far only as usage has made them so: and where they do bind, it is by the force of usage alone. If, therefore, the custom has been otherwise, and is proved to have been otherwise, the one proved must govern.  [**95]  This court has decided that even a usage, acknowledged and settled by our own judicial decisions to be the law of trade, may be altered by a mere local custom, when brought home to the knowledge of the parties. Besides, what is the usage in one place, is not necessarily the usage in another; and what is the usage in a trade to one place, is very often not the usage in a voyage to another. The usage depends upon the place, and the voyage, and the trade in which the vessel is engaged. And the usage is itself the law of the trade. We know very well that usages often change; and what is the law of trade at one time, is not always the law at another. The power that makes the law repeals it. The new usage, when it has once become the known and established one, abrogates the old.

If we are right in the positions endeavoured to be maintained, then the usage in question is not contrary to the principles of justice, is not inconsistent with the owner's right of property, and is not contrary to any positive rule of law. We cannot, therefore, perceive how such a usage can be deemed unreasonable, and therefore illegal and void.

It may be concluded then, 1st, that a usage which is not [**96]  unreasonable, may superadd a right not expressed in the contract--and 2dly, that the one in controversy is not unreasonable. And if these propositions have been established, it follows that when the contract was made between the parties, the right to ship the merchandize in question, free from freight, vested in Pawson by virtue of the contract, and consequently Donnell had no right to the set off which he claimed.

But in order to maintain the opinion of the court, it is not even necessary to insist that the right under it was a positive and absolute one, vesting in Pawson at the time the contract was made. We might concede that a usage to that extent would be unreasonable. We certainly make no such concession, because we are not aware that any principle of commercial law requires us to do so. But, waiving the argument already offered to prove that the usage to the extent claimed is not unreasonable, yet if its operation be restrained to that of a license to ship under such circumstances, revocable at the will of the owner, it will hardly be contended that there is any thing unreasonable in it. And if it be limited to a mere license, in the absence of orders to the contrary, still [**97]  Donnell was not entitled to the freight.

It will be observed that there was no prohibition on the part of Donnell to take the goods in question. There is, on the contrary, an almost necessary implication, in Donnell's first letter, that he might do it. He says, "but it is understood that you are not to put any copper or heavy articles on board at Chili." The prohibition for that particular part of the voyage, and the perfect silence of Donnell, with respect to the voyage from London to Chili, strongly implies an actual permission. But we do not put the point on the ground of actual or implied permission in the writing; our object is to shew that it was not forbidden in the writing.

It has been already remarked that the usage, sanctioned by the court, is a usage confined to the circumstances of this case. It is one of its circumstances, that there was no prohibition to do the act. If then it was the usage of trade, not to charge freight on the captain's private adventure, when the ship was in ballast, unless the captain was notified that it would be charged--if the usage was in the nature of a license only, and revocable at the will of the owner, it would still, as the license [**98]  had been acted on, have become compulsory and binding, and could not be recalled, and Donnell would not be entitled to demand the freight. Winter vs. Brockwell, 8 East. 308, is full to this point. And we think it would be difficult to shew that a usage was unreasonable, which merely inferred a license, and did not become a vested right in the captain and compulsory on the owner, until it had been executed. This point need not be enlarged on, as it cannot be deemed a necessary one to maintain the opinion given. It may be proper, however, to remark, that even in Donnell's account, Pawson is not charged with freight on these goods, although freight is charged on Goddard's cordage, to the amount of more than one fourth of what it sold for. If the spirit which concocted that account, could not work itself up to charge freight on Pawson's goods, the usage to the contrary must indeed have been well known and established. The omission to do so in such a paper, would seem of itself conclusive proof of the usage, and of the reasonableness of the usage too.

In contending that the usage was a reasonable one, we have stated that the goods did not exceed the ordinary extent of a captain's private [**99]  trade in such a ship. The amount that a captain may ship, must depend on the limits of the usage. The amount actually shipped appears in the evidence, and was one of the "circumstances" by which the jury were to try, whether the shipment was within the boundaries of a known and established usage. If it exceeded the amount fixed by the usage, it was not protected by the opinion of the court; and whether it did, or did not exceed it, was a question of fact for the jury, and was one of the "circumstances" by which they were to be governed. This is mentioned in order to shew that the usage contended for does by no means imply the right of the captain to ship any quantity of merchandize he may think proper, however large. The amount, like other customs, must depend on the nature of the trade, and the size of the vessel. It must not exceed the ordinary and reasonable extent of the private trade of a captain in such a vessel, engaged in such a voyage. There is a standard therefore sufficiently certain, whereby the jury may try it--a rule as certain as that whereby they try "reasonable skill and judgment" and "reasonable diligence," when those questions, as happens very often, are questions [**100]  for the jury, and not for the court. In this case, the amount shipped, including commission, &c. was 1115l. 13s. 3d. Pawson took with him for his private trade, 1165l. 9s. 1d.--and this sum it appears, was taken with Donnell's consent and knowledge, and in a bill drawn by him on his agent in London. Moreover, Donnell procured the amount shipped, to be insured, and charged a commission on it. These facts furnish evidence from which the jury might very well have found, that the merchandize in question, did not exceed the ordinary private trade of the captain in such a ship on such a voyage: and, that a private trade of this description is well known and understood, appears by Abb. on Ship. 213. The other circumstances to which the usage was confined--that is, that the ship was in ballast--that it did not delay her--that it did not injure the owner, nor interfere with the objects he had in view--that it was done for the purpose of advancing the interest of the owner--that it was not forbidden--that the act was done before freight was claimed--do not appear from the evidence to have been susceptible of controversy. They might surely be all found by the jury upon the evidence as it appears [**101]  in the record. And if these "circumstances"--these facts were all found by the jury, it is submitted to this court to say, whether the usage claimed can be deemed to be against justice--against positive law--or inconsistent with the rights of the owner.

Second Point.--Are Pawson's administrators entitled to recover any part of the $ 2000, mentioned in Donnell's letter of November 18, 1819? And if they are entitled to recover a part, what proportion are they entitled to recover, and by what rule is that proportion to be ascertained?

The appellant has raised three questions on this part of the controversy; and these questions are supposed to arise under the 3d, 4th, 5th, 7th and 8th exceptions.

1st. He insists that Pawson violated his duty as supercargo, and thereby forfeited all claim to wages in that character.

2d. That the compensation in question is an entire one, to be paid for an entire service, and is not subject to apportionment, by a part performance of the service.

3d. That if it be subject to apportionment, yet it ought not to be apportioned in the manner directed by the County Court.

It is of importance to attend to the exceptions to which these [**102]  objections are referred; for it will be found that some of the questions made here, are not warranted by the record, and do not appear to have been decided by the County Court.

1. The objection, first above stated, is said to arise under the 3d, 7th and 8th exceptions. To support this objection, Pawson is charged with misconduct in the following instances:--1st, in taking the cordage on freight: 2d, in taking the passenger: 3d, in concealing these acts; and 4th, in the shipment of the gold and silver bullion at Guasco.

The 8th exception certainly does not bring up either of these objections. For, according to the principle maintained by the appellant in this exception, the appellees' right to recover any part of the $ 2000 is made to depend on the receipt by Donnell on board his ship of a sufficient quantity of copper to exhaust the funds, placed by him in the hands of Pawson. The prayer, is, that unless "he received on board his ship" this quantity of copper, the appellees cannot recover this part of his wages. If this notion be correct, then although Pawson most faithfully and most skilfully discharged his duty according to the very letter of his instructions, still he [**103]  is not entitled to recover his wages, unless Donnell's funds had the good fortune to come safe to his hands in his own ship. Such a proposition can hardly be sanctioned by this court. The exception obviously raises no question on the legal effect of any supposed misconduct on the part of Pawson. It does not suggest that any misconduct has been committed by him; and if objections exist on that score, they cannot be considered under this exception.

It is also supposed by the appellant, that the acts of misconduct above stated furnish a sufficient ground for the absolute direction that the plaintiffs were not entitled to recover, prayed for in the 7th exception.

If it be even admitted, for the sake of the argument, that the acts of misconduct above mentioned might bar the claim for wages as supercargo, yet the court even in that case could only have given a hypothetical direction, and could not have given the absolute one asked for by the appellant. For each of the acts above stated may, or may not be acts of misconduct. For example--the taking of the passenger is not of itself an act of misconduct in the captain; for merchant vessels generally desire to obtain passengers. And [**104]  if the passenger in this case was taken by the permission of Donnell, express or implied, it would not be a violation of Pawson's duty; and whether such assent was or was not to be inferred from the evidence, was a question of fact; and therefore a question for the jury. So too as to the concealment alleged in the argument; it was a question of fact for the jury. And if the shipment of the silver and gold be a breach of duty in any body, it is surely a question of fact, whether it was or was not shipped by Pawson or by his directions. If, therefore, it had been the intention of the counsel for the appellant, to found this prayer on any of these supposed acts of misconduct, the prayer offered should have been hypothetical; that is, "if the jury find from the evidence, that the passenger was taken by Pawson, contrary to his duty as supercargo;" or, "if the jury find from the evidence that Pawson concealed his conduct from the owner;" or, "if the jury find from the evidence that the silver and gold was shipped at Guasco by Pawson, or by his orders, contrary to his duty as supercargo." In this, or a like form of prayer, the question of law would have been put to the court, whether such [**105]  misconduct forfeited his wages. But as the prayer stands in the record, the court were called on to decide the questions of fact, as well as the questions of law. If there were no other objections, this alone would have been sufficient to warrant the opinion given by the court in the 7th exception.

In speaking of the acts of misconduct under the 7th exception, the shipment of the cordage is not mentioned. Because this item is distinctly presented by the appellant in the 3d exception, and it is therefore unimportant whether he can or cannot avail himself of it, under the 7th. But the alleged misconduct in relation to the passenger; the concealment; and the shipment of the gold and silver, are not embraced in the 3d exception; and if these objections cannot be brought under the 7th and 8th, it is useless to discuss them; for they are not presented by the record. We have already shewn, that these three items of misconduct cannot be sustained under the 7th and 8th exceptions; neither are they included in the third; for this applies to the misconduct of "taking on freight prohibited articles," and to no other misconduct. Now the passenger and the concealment are obviously not within [**106]  this description; and the gold and silver were not taken on freight, but were put on board as the property of the owner and the captain, and therefore are not embraced in the supposed misconduct, described in the 3d exception. We cannot, therefore, be called on to defend ourselves against these three instances of supposed misconduct. These questions are not brought up by the record.

With respect to the remaining item in the account of misconduct; that is--the cordage which is the foundation of the 3d exception, it is abundantly answered by the treaty between the United States and Spain. The cordage was not prohibited as contraband; 1 vol. Laws of the United States, p. 272. Pawson did not, therefore, in this particular take on freight prohibited articles.

But let it be supposed, that these questions of supposed misconduct are all brought here by the 7th exception, and that this court will decide the fact as well as the law.

The case of the cordage is already answered; there was in fact no misconduct, because it was not a prohibited article.

In the case of the passenger, if any misconduct was committed it was done as captain; and if any wages were forfeited by it,  [**107]  it must have been the wages of captain. Yet the right to these wages is not disputed. They are admitted in Donnell's account. The wages now in question are the wages as supercargo, and they are so called by the appellant in the prayers in the 3d, 4th and 5th exceptions; and the recovery is resisted altogether on that ground. If the conduct of Pawson forfeits any wages, it must forfeit the wages of the captain, rather than those of the supercargo.

But if the taking of the passenger be considered as the act of the supercargo, or that being done by him as captain, it shall nevertheless affect his title to wages as supercargo, still it is incumbent upon the appellant to prove, that this act was a violation of Pawson's duty. He makes the charge; he must therefore prove it. He must prove that he did the act, and that the act done was a violation of his duty. The evidence is, that the act in question was not a violation of his duty to Donnell, for it was sanctioned by Donnell. See Donnell's account. In the second item of this account, he charges Pawson with "short credit, allowed for passenger from London, £  25." The words in which this charge is made strongly imply, that the passenger [**108]  was taken in the ordinary course of business, and was a matter to be adjusted in the account between them, and not a matter to forfeit all title to wages, on the part of Pawson. Donnell claims the benefit of the contract made by Pawson with the passenger, and thereby certainly adopts it, and treats it as a contract made by his agent for him. He differs indeed with Pawson as to the manner in which the passage money is to be distributed. But no question upon that subject is presented by the exceptions. The question here is, did the act of taking the passenger forfeit his wages as supercargo? Not, how is passage money to be divided? And it is apparent from the evidence, that Donnell believed Pawson to have acted in this respect within the scope of his duty.

The charge of improper concealment is so entirely unsupported by the proof, that we are at a loss to know what part of the testimony is relied on to support it. It is a question of fact not involved in any one of the exceptions, and not countenanced by any part of the testimony.

The charge of misconduct, in relation to the shipment of the gold and silver, is not better supported than that of concealment. The gold and silver [**109]  was shipped after Pawson's death. It was shipped at Guasco, (see account of Edwards & Stewart.) Captain Pawson died at Coquimbo, before the ship sailed for Guasco. It has been said that the shipment was made by his orders, although made after his death. This is a mistake. He left no orders on the subject. From the beginning of his illness, he was incapable of giving any. (See letters of Edwards & Stewart, December 8, 1820, and January 19, 1821.) We might indeed safely admit that he intended, if he had lived, to have shipped the silver and gold. But even if this shipment would have forfeited his wages, still as it is perfectly clear that he did not do the act, nor cause it to be done, it can never be contended that the mere intention to do it would work a forfeiture. There can be no such principle known to the common law. It is contrary to its whole spirit and provisions. Besides, the shipment did not put in jeopardy the ship, nor the owner's interest therein.

In this case too, as well as in that of the passage money, the evidence is that Donnell adopted the acts of Pawson, and sanctioned them by his assent. He was informed of Pawson's intention to ship the silver. (See letter [**110]  of November 4, 1820.) This silver was to be a part of the 6,000 dollars which Donnell was requested to insure. He did ensure, and charge a premium for his agency in procuring the insurance. (See his account.) He has thus made a profit on this shipment, and took no steps whatever to indicate to Pawson that he disapproved of it. It forms no part of his defence in his account. Surely, all of these circumstances furnish conclusive evidence, that Donnell did not deem this shipment a violation of Pawson's duty to him. He regarded it, and treated it as a part of the ordinary business of the voyage.

If therefore this court, under the 7th exception could decide the facts as well as the law, in these four alleged instances of misconduct, yet the testimony in every one of them fully justifies Pawson, and shows that he faithfully discharged his duty: The appellants fail in the facts, if the court deem it proper to try the facts on the evidence.

But suppose we are wrong in both of the propositions we have endeavored to maintain. Let us assume, for the sake of the argument, that the objections are presented by the record, and that the acts of misconduct imputed to Pawson are sufficiently [**111]  established; it remains to inquire, whether such acts of misconduct will forfeit all title to the wages stipulated in the contract.

In this aspect of the case, the point to be decided is this, an agent has faithfully and diligently performed his duty to his principal, according to the best of his judgment. Nothing is done, or omitted to be done in bad faith. The services have been rendered by the agent and accepted by the principal, and a large profit reaped from them. Yet the agent is supposed, in some particular instance, to have mistaken the precise line of his duty; and to have departed from it; and, by this departure, the gains of his principal are in a slight degree lessened. It is said by the appellant, that in such a case this injury to the principal, however small, forfeits the wages of the agent, however large. It is even said they are forfeited, although the owner sustain no injury. No authority has been produced to maintain either of these propositions, and it is believed that none can be found.

The principal is not without remedy in the case supposed, provided he has sustained damage. The law will not indeed forfeit the wages, by way of penalty upon the agent.  [**112]  Neither can the principal, technically speaking, set off the amount of injury received by him, in bar of the claim for wages. 1 Peak. Ev. (Norris' edition,) 416. Winchester vs. Hackley, 2 Cranch. Rep. 342. But he may maintain an action against the agent, and recover damages, commensurate with the injury sustained. And in this suit Donnell was at liberty to have shewn, if he could, that the duty of supercargo was not performed with fidelity and skill, and have thereby diminished the wages to be recovered, in proportion to the injury he had sustained. And he might have defeated the claim altogether, if it had appeared to the jury, upon the evidence, that Pawson had performed the trust so negligently, unskilfully, or unfaithfully, that he was not entitled to demand compensation. 1 Com. on Cont. 226, 227, (edition of 1809;) 2 Stark. Ev. 642, 644, (note.) Farnsworth vs. Garrard, 1 Camp. 38. But Donnell does not rely on this defence. The record presents no question on these points. Donnell insists that there has been a technical violation of duty by Pawson, and that the law visits it with the total forfeiture of his wages. And, after having received the benefit of the services, he now claims [**113]  the benefit of the forfeiture. The claim is not founded in justice, nor is it supported by authority.

If therefore the points raised were presented by the record, and the imputed acts of misconduct could be proved, still all right to the wages would not be forfeited, and consequently the prayer, contained in the 3d and 7th exceptions, ought not to have been granted. We have already shewn that the 8th exception presents a different question, and have offered argument upon it.

2. We proceed to the second objection, in relation to the $ 2,000. It is said that the performance of the whole service is a condition precedent to the recovery of any part of the compensation; and that, as Pawson died before the service was completed, his administrators can recover nothing for the services actually rendered.

This point is presented in the 5th exception, and in none other.

It is very clear that the court was right in refusing to give the direction prayed for. The appellant called on the court to decide, what is obviously a question of fact, and a disputed question of fact. The prayer, after stating the services for which the above mentioned sum was supposed to be compensation,  [**114]  proceeds thus:--"that the voyage having been altered by the consent of parties, (as appears by the said correspondence,) by striking out that part of it which related to the trip to Canton, and directing the destination of the ship from Coquimbo to Baltimore, without saying any thing of the aforesaid compensation to Pawson as supercargo, that stipulation attached to the new voyage precisely in the same manner, in which it had attached to theoriginal voyage," &c. &c. This quotation is made from the prayer, in order to shew that the stipulation is supposed to attach on the new voyage, as it has done to the old, by reason of the agreement to substitute the new voyage for the old one. The agreement then to alter the voyage is the foundation on which the prayer is placed by the appellant. It can be supported on none other. And he calls upon the court to say, not only that the agreement had been "altered by the consent of the parties," but also that this alteration "appears by the correspondence." In other words he assumes, that the correspondence being in writing, it is the province of the court to say, whether the consent of Pawson to the alteration in the voyage is to be inferred from [**115]  it or not. We deny that it is within the province of the court to decide this question. One of the facts in controversy between the parties, as appears by the record, is whether Pawson did or did not consent to this alteration. The appellant says he did assent, and thereby waived the old agreement and made a new one. The appellees, on the contrary, insist that he merely obeyed the orders of his owner; that it was his duty to obey, and being his duty, his assent to the change cannot be inferred from the fact that he performed the new voyage cheerfully, and without objection. And they maintain therefore, that the original contract was never waived by Pawson, and the rights of the parties must still be decided by this agreement.

In this state of the controversy, can the court undertake to decide the question, whether Pawson did or did not consent to the alteration? Is it not a question of fact? It does not depend upon the construction of any particular paper, but depends upon inferences to be drawn from the whole correspondence, and the acts of the parties taken together. It is therefore a question for the jury. Etting vs. Bank of United States, 11 Wheat. 75, 76, is in point.

If [**116]  we are right in these views, the judgment of the County Court upon this exception must be affirmed.

But let us waive this objection and examine the point of law proposed to be raised by the appellant, under this exception.

The ship sailed from Baltimore, Nov. 19, 1819. She returned October 21, 1821, having been absent nearly two years. Pawson died December 4, 1820, having been actively and laboriously engaged in the service of Donnell for more than a year. At the time of his death he had nearly completed the duties of his agency, and had, by his faithful services, insured to Donnell a gainful voyage. Donnell accepts all the benefits, which the labours and services of Pawson had procured for him; but contends that Pawson is entitled to no compensation for these services, because he died before the duties of the agency were entirely completed. According to this principle, if only a single hour's work remained to be done when Pawson died, his representatives would be entitled to nothing for his services, even although these services had occupied many years of his life, and had enriched the appellant. Is this the law? The principles of moral justice are opposed to it; and it [**117]  cannot, we think, be supported by the authority of adjudged cases.

The cases upon this point are collected together, and the rule laid down in Portage vs. Cole, 1 Saund. 320, (note 4,) as relates to sealed instruments.

The conclusion from all the cases is stated as follows: "Hence," (says Sergeant Williams,) "it appears that the reason of the decision in these and other similar cases, besides the inequality of the damages, seems to be, that when a person has received a part of the consideration for which he entered into the agreement, it would be unjust that, because he has not had the whole, he should therefore be permitted to enjoy that part, without either paying or doing any thing for it. Therefore the law obliges him to perform the agreement on his part, and leaves him to his remedy to recover any damage he may have sustained, in not having received the whole consideration."

The same principle applies to contracts, not under seal, with this difference that the defendant is not put to his cross action, as in cases of covenant. But if the contract has not been fully performed by the plaintiff, the defendant may show it, and the plaintiff will be allowed to recover [**118]  to the extent of the benefit derived by the defendant, and no further. 2 Stark. Ev. 643, 644, and (note n.) The doctrine is so clearly laid down in this authority, that we must beg leave to ask for it the particular attention of the court. For in strictness, &c. "But still," (says Starkie, in page 643) "if the defendant be benefitted to a certain extent, and does not repudiate the contract in toto, it seems to be a rule of policy and convenience, as well as of equity and justice, that the plaintiff should be allowed to recover to the extent of the benefit derived by the defendant, and no further."

Whatever therefore, may have been the ancient decisions upon this subject, it has for many years been settled in the English courts, that in ordinary contracts, with or without seal, the defendant according to the principles of the common law is liable, in proportion to the benefit derived from the contract, although he may not have received the whole consideration for which he stipulated; provided the plaintiff is not in fault, and does not possess the power to perform the whole stipulation. This is the general rule applicable to contracts. It is however admitted that if, from the words [**119]  of the contract, it appears that the parties intended that the entire performance should be a condition precedent to the payment of any part of the compensation, then such condition, like every other condition precedent, must be strictly and entirely performed. For the parties have a right to contract as they please. But in order to produce this result, it must clearly appear from the words of the contract, that such was the intention of the parties; and such was the case of Cutter vs. Powell. The same principle prevails in commercial contracts.

If a seaman is prevented by a superior power from performing the service he contracted to perform, he is entitled to a proportional part of his wages; as in the case of sickness or death of the mariner; and also in the case of impressment. Abb. on Ship. 426, (and note 1,) 427, (and note 1,) 433, (and note 1.) In these passages in Abbot, the doctrine is summed up, and the leading authorities referred to. And the cases given in the last mentioned page, seem to be conclusive on this point. The same principle is fully supported by the following authorities:--Hart vs. Ship Littlejohn, 1 Peters Adm. Rep. 115 to 121. Johnson vs. Sims, Ib. 215,  [**120]  Poth. Marit. Cont. Placita, 179 to 193.

If it be said that contracts for personal service stand on different grounds from other contracts, and that the performance of the whole personal service stipulated is a condition precedent to the payment of any part of the stipulated reward, for which the service is the consideration, the answer is that no good reason can be given in support of such a distinction. Neither do the authorities sanction it, for the cases of maritime contracts above quoted, were cases of contracts for personal service. Many of the cases upon the subject of hiring by the year relate to the time when the wages may be demanded--the time when they become payable. If they were to be paid at the end of the year, they cannot be demanded before. The King vs. Inhabitants of Whittlebury, 6 T. R. 467. 3 Stark. Ev. 1766.

And in the case of Cutter vs. Powell, so often referred to, it is distinctly admitted in the argument of the counsel for the defendant, and sanctioned by the court, that in the common case of a hired servant who contracts by the year, and dies in the middle of it, his executors may recover a part of his wages, in proportion to the time of service.  [**121]  

The case mainly relied on by the appellant, is the case of Cutter vs. Powell, 6 T. R. 320.

This case was manifestly not decided upon any general rule of law applicable to contracts for service, but was decided upon the special terms of that particular contract. The Judges say so in delivering their opinion, and the unusually high rate of the wages is greatly relied on by two of the Judges, for the purpose of proving that the wages were to be contingent and not certain. There is no circumstance like that in the present case. In Abb. on Ship. 429, in speaking of the case of Cutter vs. Powell, it is said to have been decided "upon consideration of the particular terms of the note, and of the great excess of the sum to be paid to Cutter, if he had performed the whole voyage according to those terms, above the usual rate of wages upon a monthly hiring."

The case of Countess of Plymouth vs. Throgmorton, Salk. 65, referred to by Lawrence, Justice, in his opinion in the case of Cutter vs. Powell, might be sufficiently answered by saying, that if it be contrary to the cases above referred to, it is then overruled by them. In note (a,) page 323, of Cutter vs. Powell, it is said [**122]  that the ancient law was different from what the modern is in that case conceded to be.

But a further sufficient answer may be given. The case of Countess of Plymouth vs. Throgmorton, does not justify the account given of it by Justice Lawrence: He says, in speaking of this case, "it was argued that without a full year's service nothing could be due, for that it was in the nature of a condition precedent; that it being one consideration and one debt, it could not be divided; and this court were of that opinion, and reversed the judgment."

Now it does appear, it is true, that the argument above stated was offered by Sergeant Holt, who was counsel in the case. But it does not appear that "the court were of that opinion," as is stated by Justice Lawrence. The report in Salkeld does not say so. For after giving the argument of counsel it says, "judgment reversed," and does not profess to give the grounds upon which the court decided. The doctrines maintained by the counsel in argument are not ascribed to the court, by the reporter. The full copy of the record of this case will be found in 3 Salk. 784; and it is apparent upon looking at it, that the declaration could not be supported,  [**123]  and that the judgment in the court below ought to have been reversed on the pleadings. The declaration states the contract in substance to have been, "that the earl of Plymouth authorized Edward Picke to demand and receive all sums of money then due to the earl of Plymouth, or that should become due in the next three years, and to apply the same as the earl of Plymouth should by writing direct; and for his care and labour in the premises, the said earl engaged to pay him a hundred pounds a year for three years. The declaration then avers, that the said Edward afterwards, for the space of three quarters of a year from thence next following, from time to time, "solicited and requested divers persons the debtors to the said earl, to pay sundry sums of money at that time due and payable to the said earl," &c. &c. Now, it will hardly be contended that this is a good averment, that the service stipulated was performed for any space of time. The duty averred to have been for three quarters of a year, is not the service contracted to be done; and there is in this declaration no good and legal averment of performance of the service contracted for, even for a single day. The case therefore must [**124]  have been reversed on this ground; and it certainly does not appear that the court decided it on the ground, taken by counsel in the argument.

These two cases then can hardly be sufficient to outweigh the many authorities produced in support of the opinion of the court. And it would indeed hardly be desired to find authorities to support the principle maintained by the appellant. For if he be right, then where a slave is hired by the year, and dies an hour before the expiration of the year, his master loses his wages. So too the family of an overseer would lose the fruits of his labour, if he died an hour before the expiration of the year. And although such contracts of hiring have been common for a long time in this State, it has never been supposed that the accident of sickness or death would prevent the party or his representatives from recovering for the proportion of the service actually rendered. Yet according to the doctrine maintained by the appellant, if by sickness or death pawson was prevented from performing the most trifling proportion of his duty, he was entitled to nothing; the contract being an entire compensation for an entire service, and not subject to apportionment.  [**125]  There is surely nothing like justice in the rule to recommend it to the favour of the court.

It has been also insisted on the part of the appellant, that the expressions in Donnell's letter, that the $ 2000 were to be payable on Pawson's return, make his return a condition precedent, and that the right to the wages depends on the happening of this contingency.

In reply to this argument, it is sufficient to refer to 1 Pow. on Cont. 267, 268. Abb. on Ship. 433, 434, (note 1.) The words in Donnell's letter do not create a condition; they are modal only; and relate to the manner in which the contract shall be performed.

Assuming then that Pawson had not by misconduct on his part forfeited all claim to wages as supercargo; and that the compensation agreed upon is subject to apportionment; the only remaining question, in relation to this part of the subject is, whether the County Court have given the true rule.

This question is brought up by the 4th exception, and can arise under none other. The rule of apportionment is given in the opinion of the court, and according to that rule it is to be graduated by the time Pawson was actually in service; and the opinion assumes [**126]  that the duty of supercargo commenced with the voyage, and terminated on the signature of the bill of lading.

We do not know that the court are supposed to have erred in fixing the commencement of the voyage as the time when the service commenced. Pawson, it is true, was both captain and supercargo, yet in estimating his wages as supercargo, we cannot take into consideration that he was captain. He must be dealt with as if a different person had been captain, and he nothing but supercargo. And if that had been the case, it would be too obvious for argument, that his service began when the ship sailed from Baltimore. 2 Liv. on Agency, 215.

But although the time when the service commenced is not questioned, yet the time when it terminated is disputed, and it is said the court have erred in the time mentioned in their direction.

If the court have erred in this respect, the appellant has no right to complain of it. For in his prayer, he assumes, that the duty of supercargo terminated when he had completed the investment of the appellant's funds. The court consider it as terminating upon the signature of the bill of lading for the homeward voyage; and this must necessarily [**127]  happen after the investment of the funds in the homeward cargo. The court therefore, have in their direction, made the portion of time lost by the death of Pawson, to be greater than the defendant asked for; and have given, in this respect, to the appellant more than he demanded. He, therefore, cannot allege error in that part of the opinion.

But if we put aside this answer, which is believed to be quite sufficient on this subject, yet it can easily be proved by authority, that the court have not erred in fixing the time when the service ended. For, in the first place, the duties of master and of supercargo are known to the law, and need not be proved as matters of fact. And in the second place, the goods would have been in the charge of Pawson as captain, and not as supercargo, from the signature of the bill of lading until the end of the voyage. These propositions are both proved by the following authorities: Kendrick vs. Delafield, 2 Cain. Rep. 67, 72. United Insurance Company vs. Scott, 1 John. Rep. 111, 115. 1 Liv. on Agen. 69, 72. 2 Liv. on Agen. 215. In the case of Kendrick vs. Delafield, the same person was captain and supercargo, and in that case, Kent, Justice, says:  [**128]  "The captain did not, and could not lay aside his character and responsibility as master, until the vessel had performed her voyage, and arrived at the port of destination." His expressions marking out their relative duties, are equally strong in the United Insurance Company vs. Scott.

The bills of lading are the contracts of the master, as master, that he will carry the goods to the port of destination. Abb. on Ship. 217, 218. See the bills of lading in the record. After the bills of lading were signed, what more had the supercargo to do? It would then have become the duty of Pawson, in the character of captain, to take the goods to the port of Baltimore; and during the voyage, and until the arrival in port, the cargo, if he had lived, would have been in his charge as captain, and the supercargo would have had no right to interfere. Upon the arrival of the vessel in Baltimore, the cargo was to be delivered to Donnell himself, or his order. The supercargo, therefore, had nothing to do, and could not lawfully interfere, after the bill of lading was signed. His services ended at that time, and the court below were right in fixing that as the period, at which his duties terminated.  [**129]  

It has been said that the authority of supercargo did not end at the time above mentioned, and that it was his duty to be on board the vessel on her homeward voyage, because he had the power during that voyage to alter the destination of the cargo. The answer to this argument is, that it would have been contrary to the orders of Donnell to have changed the destination of the ship, and take the copper to any other port. And the law hardly makes it the duty of a supercargo to be on board, in order that he may have an opportunity of committing a breach of duty. The law will not require his presence, unless he may have some duty to perform. If the court were right in fixing the time of the commencement, and of the termination of the duty of supercargo, we do not know that any other error is supposed to exist in the direction. The principle of apportionment adopted by the court, is the same with that prayed for by the appellant. His compensation, as supercargo, is not measured solely by the time he was engaged in buying or selling cargo; but the time occupied in getting to the scene of action is considered as a part of his time of service. It is difficult to imagine any other just [**130]  rule of apportionment. For his time and labour were his capital, and while he was on his voyage, as supercargo, to London or to Chili, he was incapable of engaging in any other profitable occupation. This service so engrossed his whole time, as to exclude, necessarily, any other business. If he was in service, he was, of course, earning wages during all that time.

But it seems to be supposed that there ought to have been a deduction from the $ 2000, on account of the alteration in the voyage, and that the court erred in refusing that part of the prayer.

The claim to this deduction is not based upon the notion that Pawson assented to the change, or assented to any diminution of wages. His agreement in this prayer is put out of the question. And the appellant, in effect, contends that if the voyage originally contemplated, was abandoned by the orders of Donnell, and without the consent of Pawson, that the latter is entitled to wages only in proportion to the service actually rendered, and not according to the contract made between the parties.

If this principle be sound, it leads to this conclusion, that if the ship had been ordered back from England, and the whole speculation [**131]  given up, Pawson could have recovered in proportion only to the duties actually performed. In other words, if Pawson was prevented by Donnell from performing the service, Donnell is not bound to make him any compensation. The whole current of authorities stand in opposition to this doctrine. Pawson sails on the voyage originally planned, and for which he was to receive for his services as supercargo, $ 2000. When he is in England, and after he had put himself out of the way of other employment, by proceeding to execute this contract, Donnell, without consulting him, and in the exercise of what was no doubt his lawful power, orders the voyage to be altered. It is altered in obedience to his order. Pawson is ready to perform his engagement, but he is prevented by Donnell. Is he not entitled to demand the pay when he is ready to perform the service? Donnell does not appear at that time to have entertained the notion that the wages were to be cut down, because the voyage was altered. He does not suggest it in his letter to Pawson, and their is nothing either in his letter or in that of Pawson in reply, from which it can be inferred that either party looked to any change in the wages agreed [**132]  on before. On the contrary we think that the jury might and ought to have inferred, from the silence of both parties on the subject, that both of them understood and agreed that the compensation as it stood in the original contract was to remain unchanged. And if the jury might possibly have so inferred from the testimony, then the absolute direction asked for ought not to have been given.

But putting aside any supposed understanding between the parties, we come to the question of law proposed to be raised on this exception. And we maintain, that inasmuch as Pawson was ready and willing to have performed the service originally agreed on, and was prevented from doing so by the orders of Donnell, he is entitled to recover from Donnell the whole compensation originally contracted to be given. This principle, however, is involved in the questions relating to the Canton privilege.

Third Point.--Are the administrators of Pawson entitled to recover compensation for the privilege of twenty-five tons, from Canton to Baltimore, stipulated in Donnell's letter of November 18, 1819, and of which Pawson was deprived by the act of Donnell, in changing the voyage originally contemplated?  [**133]  

The only remaining subject of controversy between the parties is the privilege of twenty-five tons from Canton to Baltimore, stipulated in Donnell's letter of November 18, 1819. The questions on this part of the dispute arise out of the 2d, 6th and 9th exceptions. The points presented by the other exceptions have been already disposed of.

In the second exception, as in some of the others hereinbefore examined, it will be found that the appellant called on the court to decide a question which properly belonged to the jury; and that the court were on that account right in refusing the prayer, if it had even been open to no other objection.

In this exception, the appellant in his prayer in the first place assumes as a fact, that the voyage had been "altered by the direction of the defendant and the consent of Captain Pawson," and prays the court to instruct the jury that "the privilege stipulated for Captain Pawson to bring home twenty-five tons from Canton, clear of freight, was voluntarily relinquished by him, and exchanged for the privilege of bringing home his funds in copper from Coquimbo."

Now there is no paper by which Pawson is supposed to have relinquished [**134]  his privilege to Canton, and exchanged it for a privilege to bring copper from Coquimbo. There is no paper the words of which are supposed to imply such relinquishment or exchange. The relinquishment and exchange is inferred in the argument, from the correspondence and the acts of the parties. If he has relinquished and exchanged in the manner supposed, he has not done it in writing. It is not contended that it is done in any one of the letters or papers contained in the record. And if it is supposed to be a parol relinquishment and exchange, to be inferred from the whole correspondence and the acts of the parties taken together, then surely the question, whether there was such a parol relinquishment and exchange, must be for the jury and not for the court. Laidlaw vs. Organ, 2 Wheat. 183. Etting vs. Bank of the United States, 11 Wheat. 75. Both of these cases are believed to be fully in point, and to show that the court were right in refusing the prayer made by the appellant.

The two cases, relied upon by the appellant to prove that this is a question for the court, will be found to be distinguishable from the case before the court, and the cases in Wheaton. In Macheath vs. Haldimand,  [**135]  1 T. R. 172, 180, the question was, whether the party who purchased for the government had made himself personally answerable. And this depended on the words of his written contracts; that is, on his letters, orders, &c. It was a question upon the interpretation of the written words, and therefore belonged to the court.

In Ferris vs. Walsh, 5 Harr. & Johns. 308, it was also a question upon the construction of the written instruments taken together: did the written words amount to a guaranty? Was such the true meaning and construction of the words in the instruments of writing? These questions without doubt belonged to the court, whose office it is to expound written instruments.

But the question here is a different one. It is not a question, what is the true meaning and construction of any or all of the letters. It is an attempt to infer from the correspondence a waiver and exchange, which the words of the letters do not imply. It is an attempt to infer another fact from the facts proved. The case of Etting vs. Bank of the United States, 11 Wheat. 75, is precisely like it.

If indeed Pawson had voluntarily relinquished the Canton privilege, or exchanged it for one from [**136]  Coquimbo, nobody would contend that he was entitled to damages for the loss of a privilege which he had thus voluntarily released, or had exchanged for another. But we insist that he neither relinquished nor exchanged it. The appellant replies to us, that the voyage was altered by the consent of Pawson, and that by such consent did he relinquish the privilege from Canton, and exchange it for one from Coquimbo. To this we answer, 1st, that whether Pawson did or did not consent to the alteration is surely a matter of fact, and not a matter of law, and the court cannot assume the fact. He might have written and acted in the manner he did write and act, because he supposed he was bound to obey the owner and had no right to refuse. And he was undoubtedly bound to obey; and his obedience to the orders of Donnell cannot therefore be evidence of a waiver of his rights. At all events, his obedience is not conclusive evidence of such waiver, as is assumed by the appellant in this prayer. In the second place, if the consent of Pawson was admitted, it does not follow as a conclusion of law, that by such consent he relinquished the privilege from Canton, and exchanged it for a privilege from Coquimbo.  [**137]  The jury might indeed infer such relinquishment and exchange, from the fact of consent, but it would be an inference of fact and not of law. It would be a matter for the jury to decide, and not for the court. For the consent to the alteration might be given, reserving the right to demand compensation on account of the Canton privilege. The consent, and the right to compensation for the privilege might exist together. They are not inconsistent with one another. The relinquishment and exchange of the Canton privilege could not therefore be the legal consequence of Pawson's consent to alter the voyage. And upon either of the grounds above mentioned the court were right in refusing the prayer contained in this exception.

After refusing the prayer made by the appellant, the court proceeded to instruct the jury in the manner set forth in the same exception. The propriety of that instruction remains to be examined.

In this direction the court leave it to the jury to say, whether Pawson did or did not waive the benefit of the privilege from Canton. We have already endeavoured to show that the question, whether he did or did not waive it was a question of fact for the jury, and not [**138]  a question of law for the court. It is unnecessary to repeat the arguments already offered on this head. We think we may safely conclude that the appellant was wrong in treating it as a matter of law, and the court right in dealing with it as a matter of fact.

But the court have gone further in their direction, and they say that if Pawson did waive the privilege from Canton, yet unless he did so with a knowledge of his legal rights, he is still entitled to recover an equivalent for the privilege lost. It is said by the appellant that no one can avail himself of the plea of ignorance of the law, and that if Pawson waived his privilege he is bound by it, and cannot allege that he did it under a mistake as to the law. The case of Lammot vs. Bowly, 6 Harr. & Johns. 500, is a complete answer to this objection, and so fully sustains the opinion of the court that it supersedes all argument, and saves us the necessity of producing and examining the mass of authorities on this subject. In that case, the court lay down the rule in the following words: "It is not intended to say that the plea of ignorantia juris would in all instances be available in civil cases, (in criminal it never can [**139]  be,) because some legal propositions are so plain and familiar even to ordinary minds, that it would be doing violence to probability to impute ignorance in such cases; but it is only meant to say, that where the legal principle is confessedly doubtful, and one about which ignorance may well be supposed to exist, a person acting under a misapprehension of the law, in such a case, shall not forfeit any of his legal rights by reason of such mistake."

The 9th exception is immediately connected with this subject, and the proposition contained in it appears to have been brought before the court, in consequence of the opinion set forth in the 3d exception.

In the prayer in the 9th exception, the court are called upon to assume that Pawson "consented to the change of the original voyage," and "waived his privilege from Canton." Now it was not admitted, as we have already shewn, that Pawson consented to the change of the original voyage; and it was not admitted that he waived his privilege from Canton. Both of these matters were matters of fact, and both of them were in controversy between the parties. And the court were right in refusing the prayer upon this ground, even if there [**140]  had been no other objection to it.

But if these questions of fact had, by the prayer, been left to the jury, still there would have been no error in this opinion of the court, and it was properly left to the jury to say whether, if Pawson had consented to the change of the voyage, and had waived his privilege to Canton, he had done so in ignorance of his legal rights. For the privilege from Canton is proved to have been a much more valuable one, than the privilege from Coquimbo. Pawson was a sea captain, toiling in his profession. Donnell is proved by the record to have been a merchant of great wealth. And it can hardly be imagined, that Pawson would have exchanged the privilege from Canton for one of inferior value, unless he was induced to do it by the ignorance of his legal rights. No other motive is assigned by the appellant, and it will scarcely be said that a man, trusted by Donnell with the execution of this great scheme of commercial adventure, could be ignorant of the relative value of the privilege from Canton, compared with a like one from Coquimbo. It is not necessary however for us to show, that there was sufficient evidence to prove his ignorance of the law. It is [**141]  enough for us, that there was evidence tending to prove it. "Where there is any legal admissible evidence tending to prove the issue, the effect of that evidence is solely for the consideration of the jury." 1 Stark. Ev. 399, 400. In the case of Etting vs. Bank of the United States, 11 Wheat. 50, the chief justice in delivering the opinion of the court says, "If the testimony be examined, it will, we think, appear that the counsel for the plaintiff has not asked the court to give its opinion on any inferences of fact, which it was not at least possible for the jury to draw from the evidence. The knowledge of the Bank is not questioned. The ignorance of Etting might be inferred from the absence of all testimony, proving his knowledge that any fraud had been practised by Mr. M'Culloh." It was surely possible for the jury, from the facts above referred to, and the situation of the parties, to infer that if Pawson had waived his privilege from Canton, that he had done it in ignorance of his legal rights. Indeed we might safely call on the jury to infer the ignorance of Pawson, from the absence of all evidence proving his knowledge. For the counsel for the appellant will not say that the [**142]  legal rights of Pawson were plain and familiar; if they were plain and familiar, there would be no difference of opinion on the subject, between the County Court and the learned counsel for Donnell. Yet this difference of opinion is manifested by the 6th exception. And on a point of law, where either the County Court or the learned counsel for the appellant are in error, and that too after the most mature consideration, it would be doing violence to probability, to impute knowledge to Pawson. In such a case, his ignorance ought to be inferred, or at all events might possibly be inferred by the jury, from the absence of all proof or probability of knowledge.

The appellant has relied on Keys vs. Parnham, 6 Harr. & Johns. 418, and on the case Davis vs. Davis, 7 Harr. & Johns. 36, to shew that the court may direct the jury on the sufficiency or insufficiency of evidence to establish a fact. The present case does not require us to enter on a full discussion of this principle. There is no question about the sufficiency of evidence presented by any of the prayers in the record, and this court therefore are not called on to decide it. And besides we are very willing to leave it to the [**143]  court to say, whether the evidence of Pawson's ignorance of the law is too slight and trifling to be left to the jury.

The 6th exception is the only one which remains to be examined. Was the privilege from Canton subject to the two contingencies mentioned in the prayer, and liable to be lost upon the happening of either of them? It appears in the evidence, that by the usage of trade, if the captain died, the privilege in question, survived to his representatives, and did not go to the captain who succeeded to the command of the vessel. There is no evidence of any contrary usage. The court could not, in opposition to such proved and undisputed usage of trade, say that "the death of Pawson at Coquimbo, in the course of that voyage, would have put an end to all claim by his representatives on account of this privilege;" and could not therefore give the direction prayed for. It has been said in the argument, that it does not appear that the privilege from Canton belonged to Pawson as Captain, and that it might have belonged to him as supercargo. If any doubt could be raised on this subject, we do not perceive that it would materially affect the argument. But the testimony puts it [**144]  beyond doubt, that the privilege in question was a captain's privilege, and not a supercargo's. And the appellant in his prayer treats it as a captain's privilege, which he supposes was contingent on the death not of supercargo Pawson, but of Captain Pawson. Neither should the other contingency, mentioned in the prayer, have entered into the calculations of the jury. If the ship had pursued the voyage originally contemplated, and had been lost, Pawson might have lost the benefit of his privilege. Yet it does not necessarily follow that he would even in that case have entirely lost all benefit from it, as is assumed in the prayer. But waiving any discussion on that head, we insist that as Pawson was prevented from performing the voyage by the act of Donnell, the latter takes upon himself all the contingencies, and cannot claim an abatement on account of the hazards, to which the contemplated adventure was subject. This is the rule in the case of seamen's wages, which are always contingent on the safe arrival of the vessel. In Poth. Mar. Cont. Pl. 203, page 125, 126, it is said, "that if the ship is voluntarily, and of course by the master's act, unloaded in a place nearer than that [**145]  which is designated in the contract of affreightment, the wages promised to a sailor hired by the voyage shall suffer no diminution." In Hoyt vs. Wildfire, 3 Johns. Rep. 518, it is said by chief justice Kent, "that the rule on this subject in the English law, does not, I apprehend, differ from the marine law of France, although I have not met with any adjudged case in point, and a recent nisi prius decision, Eaken vs. Thom, 5 Esp. N. P. C. 6, looks strongly the other way." And in Sigard vs. Roberts, 3 Esp. N. P. C. 71, at the conclusion of the case, Lord Eldon says, "this clause (one in the shipping articles) therefore cannot prevent the sailors suing for their wages when the master discharges them; the voyage then is ended as to the man who is discharged from the ship." The same principle is ruled by Lord Ellenborough in Gondell vs. Ponteguy, 4 Campb. 375.

"If the plaintiff was discharged (says Lord Ellenborough) without a sufficient cause, I think this action is maintainable. Having served a part of the quarter, and being willing to serve the residue, in contemplation of law he may be considered to have served the whole."

In Cook vs. Jennings, 7 T. R. 381, Lawrence, J.  [**146]  in delivering his opinion upon an action for freight, says, "but he is not entitled to the whole freight, unless he has performed the whole voyage, except in cases where the owner of the goods prevents him." If then the owner of the goods prevented the ship owner from performing the voyage, the owner of the goods must pay the whole freight. There is no deduction for hazards or contingencies, which might prevent the ship from receiving freight. The case put by Justice Lawrence is in principle the very case under discussion.

These cases seem to establish firmly the proposition, that when the party is to be paid by the voyage, he is entitled to full wages if he is prevented by the owner or master from rendering the service. And he is not bound to abate any part of the stipulated wages, on account of the hazards of the voyage. In this case the privilege from Canton was a part of the compensation, and was by the voyage, and not by the time of service. It is supposed by the appellant that this part of the compensation was liable to be lost, by the destruction of the ship on the voyage. If this be the case, it is strikingly analogous to the case of seamen's wages hired by the voyage,  [**147]  and to the case of freight.

The following cases will be found to maintain the same doctrines.

Abb. on Ship. 424, 425 (note 1.) Mahoon vs. The Glocester, 2 Peters Adm. Dec. 403. Rice vs. The Polly and Kitty, Ib. 423, (and note.) Limland vs. Stephens, 3 Esp. N. Pri. Cas. 269. Valin. Com. B. 3. Tit. 4. Art. 3. 2 Br. Adm. 533. Jacobson's Sea Laws, 148. Napoleon Com. Code, Art. 250. Sullivan vs. Morgan, 11 John. Rep. 66.

In the case last cited, the seamen were hired by the month, and no freight had been earned. Yet they received their full wages for the time they had served, according to the contract, without any deduction on account of the danger, that the ship might have been lost on the voyage before freight was earned, and consequently before wages were due. This case is the same in principle with the one at bar. In both cases if the ship had been lost in the course of the voyage, the compensation contracted to be given would have been lost also. And as it was held not to be subject to abatement on that account, in one instance, it is difficult to imagine why it should be held differently in the other.

The case of Hulle vs. Heightman, 2 East. 145, turned upon the [**148]  form of action. In the case before the court the agreement in the beginning of the record removes any difficulty on that score, and permits us to recover in this action any thing that could be recovered in any other form. Besides, in the case of Hulle vs. Heightman, the time of payment stipulated in the contract had not arrived, when the suit was instituted. In that case, the seamen by an express stipulation were bound "to assist in bringing the ship back again, and making her fast in a proper place, before they could make any demand upon the captain for the wages due." And as the homeward voyage was not abandoned, but was in the course of execution, the time had not arrived when the wages would become due, according to the terms of the contract. They could not therefore be sued for as if due. But in this case the original voyage had been abandoned by the defendant, long before this action was brought, and the original contract at an end. The wages were as fully due, at the time the suit was commenced, as they would be at any future time, and in this respect also the case before the court stands clear of the difficulty, which met the plaintiff in the case of Hulle vs. Heightman. Indeed [**149]  that case furnishes another proof of the soundness of the principle for which the appellees contend; for it is not suggested that the wages are to abate on account of the hazard, that the vessel might be lost on the homeward voyage, before she was made fast in her proper place. On the contrary, it appears to have been conceded on all hands, that if the seamen were entitled to recover any thing in that action, they were to recover according to the sum stipulated in the contract. And that no abatement was to be made on account of any contingencies to which they might have been exposed, if they had been allowed to go on the voyage originally contracted for.

In fine, the cases taken together seem irresistibly to lead to the conclusion, that if the person to whom the service is to be rendered prevents the performance of it, he must pay as if it were done. In this case Donnell had a right to change the voyage; he did change it; and Pawson was bound to obey, and he did obey. Donnell, therefore, prevented Pawson from performing the service, and must pay as if it had been performed. The party who is not in fault is not bound to give up any part of the compensation, contracted to be given.  [**150]  It belongs to him by the agreement, and the law will not enable the other party to deprive him of it without his consent.

Wirt, for Donnell.

The first subject to which the attention of the court is invited, is the claim for the alleged loss of the privilege from Canton, which is the subject of the 2d, 6th and 9th bills of exceptions, on the part of the appellant. This is one of those things which it was not supposed possible for human ingenuity to bewilder with a moment's doubt, until the defendants' second prayer was refused, and the instruction was given which produced the appellant's 6th and 9th prayers. Graham, the administrator of Pawson, is obviously a man of business, as appears by the record, and it had not entered into his imagination to make this claim. His letter to Donnell will be found in the record, and his account stated. By his letter it will be seen that he manifestly considered the privilege from Coquimbo as substituted for that originally stipulated from Canton or Batavia; and he claimed nothing more for Pawson than the right to bring the same weight, 25,000 lbs. from Coquimbo, which he was originally authorised to have brought from Canton or Batavia. "You [**151]  will observe," says he, in that letter, "that Captain Pawson's privilege in the ship was not taken by several thousand pounds weight; of course, you will allow for the deficiency as you have done before." It is not the value of the Canton privilege in Canton goods, which he proposes to estimate and claim; but simply the weight which he considered Pawson authorised to bring from Coquimbo, and which, not having been wholly brought, he claims an allowance for the deficiency. Turn to his account on the next page, and you will perceive that there is entered at the foot of the account, in the left hand column, Graham's estimate of this deficiency, to wit, $ 255 52, under the description of "loss of privilege," and this thrown in among several articles, by way of make-weight, after the account had been formally signed and closed, and consequently not presented as articles on which he meant peremptorily to insist. Besides, if Graham, with his knowledge of commercial usage, had considered the Canton privilege as a subsisting privilege, he would have charged that privilege at its full value, and we should find on the other side a credit for the freight of Pawson's copper and other goods from [**152]  Coquimbo. That freight was the inevitable consequence of treating the Canton privilege as a subsisting claim; for Captain Pawson surely could not have two privileges subsisting in the same ship at the same time; an actual privilege from Coquimbo, and an ideal one from Canton, charged at its highest speculative value. The total absence of any credit for the freight of Pawson's goods from Coquimbo, and of any charge for this Canton privilege, as a Canton privilege, by Graham, and the total absence of any charge for the freight of Pawson's goods by the Chesapeake, in Donnell's account, all go to prove that this vision of a subsisting privilege, in a non-subsisting voyage, had never entered the heads of these practical men. It was left for the ingenuity of our learned friends, on the other side, to start this chimera, and it did not occur even to them to start it, till their imaginations had been heated and ignited by the collisions of the trial. The court will find the proof of this fact in the account; where it will be found that, after Graham had closed and signed his account, under his signature, in the right hand column, there are three entries headed "claim, as set up in court, viz.  [**153]  " and then assuming the balance as it had been struck by Graham, $ 5,552 97, they add to it for drip stones and duties saved, $ 48 06, and then, for the first time, this Canton privilege makes its appearance under the title of "Loss of Canton privilege, $ 3,050|" in lieu of the $ 255 52, which Graham had entered at the foot of the opposite column, on account of the deficiency of weight, merely from Coquimbo. Nor had our learned friends the grace even to throw into the opposite scale the freight of Pawson's goods from Coquimbo; but they claim both the privilege of supposititious goods, on a supposititious voyage, and the privilege of actual goods on an actual voyage; and thus, according to their statement of the account, Pawson gets the benefit of a double investment of the same capital; that is to say, he gets the freight of an imaginary Canton cargo, in which his capital might have been invested if the ship had gone there; and also the freight of the goods in which that capital was actually invested at Coquimbo: the learned counsel, seeming to suppose, that as they had a fat pigeon to pluck, it was not necessary to be at all scrupulous as to the extent of the depredation. The court,  [**154]  however, not being disposed to "go the whole" length, instruct the jury, that if they allow the plaintiff the Canton privilege, they must allow the defendant the freight on Pawson's adventure from Coquimbo. After such a manifestation of the grasp-all disposition on their own part, it does not seem to be with the best of all possible graces that the learned counsel on the other side complains of the spirit which concocted Donnell's statement of the account. But waiving this interchange of courtesies, let us proceed from this view of the origin of this Canton claim, to the consideration of its nature.

It is proper to observe, in the first place, that this is not an insulated contract for an insulated voyage. This is not Pawson's first and only connexion with Donnell. It appears by Graham's letter, that he had been previously in his employment, for in refusing to admit the freight for the cordage, he reasons upon Donnell's own construction of the captain's privilege in a previous voyage which had been performed for him by Pawson in 1816. It is the case, then, of a sea captain, looking to a permanent and profitable connexion, in the line of his business, with an opulent and enterprising [**155]  merchant. This fact should be borne in mind.

It is essential to the successful pursuit of commerce, that the merchant should have the uncontrolled privilege of planning and altering his enterprizes at pleasure. In all his operations he is governed by the intelligence which he is continually receiving, of the state of the markets abroad; and as these markets are always fluctuating, it is an every day's occurrence to see a complex voyage, which had contemplated several ports, varied and remodified in the course of its progress, at the pleasure of the merchant for whose benefit it is made. Those who enter a merchant's employment, enter it with full knowledge of his sovereign power over the destination of his ship. The captain knows that he is bound to obey the owner's instructions, without asking for a reason. He knows, that with regard to his owner "sic volo, sic jubeo, stet pro ratione voluntas," is reason enough, and that he the captain has nothing to do but to obey. With regard to any little adventure which the captain is permitted to have on board, and to carry, free of freight, it is a mere dependant on the great enterprizes of the merchant. The overruling object of the voyage [**156]  is the profit of the owner. The captain avails himself of the owner's experience, skill and knowledge, in seeking the most profitable ports, to make his own small investments at the same ports. He knows very well that the voyage is not made on his account, but on the sole account of his owner. He is not the charterer of the ship. His instructions are not charter parties and contracts of affreightment, in which light they seem to be erroneously viewed on the other side. The privilege accorded to him is a mere dependant privilege following the fortunes of the larger adventure as obsequiously as the cock-boat follows the ship to which she is lashed, and to which she belongs; and the cock-boat might just as rationally complain that the ship had changed her course, as the captain complain that the owner had changed the destination of the voyage; because the captain enters the service with full knowledge that this power of change is perfectly arbitrary on the part of the owner. With regard to his own small venture, he knows that it will be generally true, that what is most profitable for his owner will be most profitable for himself; that if, for example, the market of Baltimore was already [**157]  glutted with Canton goods, so that his owner had no longer a hope of a profit on Canton goods at that market, neither could he hope for a profit on the same kind of goods in the same market; and even when it is otherwise, and the captain would prefer for his own interest, that the original destination had not been changed, he knows that he is to find his indemnity for any petty temporary loss, in the permanency of his connexion with a rich and bold and skilful adventurer, whose prosperity had already shewn how well he could play at the game of commerce; and that if he should lose to-day by the change of a voyage, he would gain a hundred fold in the long run by the permanency of the connexion. The captain's object is to be permitted to wield his little capital at the ports which he visits for his owner, and to carry his goods free of freight in the owner's ship. There is no stipulation on the part of the owner, that his ship shall visit such and such ports. If there were such a stipulation, Pawson, if he had lived, might have maintained an action for damages against Donnell for not having sent the ship to Canton. But this, surely, cannot be pretended. Nay, it is conceded that Donnell [**158]  had the right to change the destination of the ship at pleasure: and this concession is utterly inconsistent with the idea of a stipulation with Pawson, that the ship should go to Canton; for if there were such a stipulation, Donnell had no right to violate it, no man having a right to violate the rights of another. Now, if the original plan of the voyage by Canton did not amount to a stipulation that the ship should go to that port, and consequently gave Pawson no right to sue for damages, the opinion of the court below is wrong, for this is the very thing which they permit Pawson virtually to do; for they permit him to claim damages for the loss of the Canton privilege on the ground of his title to it by stipulation. They allow him to prove what such a privilege from Canton would have been worth in that year, and to recover the amount so proved in the form of damages; an opinion which cannot possibly be right, except on the postulate that Donnell had no right to alter the original voyage by reason of this stipulated privilege with the captain. But it is conceded that the owner has the sovereign right to change the voyage at pleasure--and if he has a right to do so, he surely cannot [**159]  be made to answer for it as wrong.

On our side, we admit that the captain is entitled to his privilege by force of the stipulation; that is, he is entitled by the stipulation to bring home twenty-five tons by admeasurement, or 25,000 lbs. by weight, of goods, in Donnell's ship, free of freight. This is the substance and the whole effect of the stipulation according to the law and usage of merchants. The error of the opposite opinion arises from considering Donnell as under a stipulation to send the ship to Canton, or to answer the captain in damages if he fails to do so. But such a construction would lay a burthen upon commerce, which would not only embarrass it in the extreme, but destroy it altogether. A merchant could never change the original plan of his voyage, without meeting an action for damages by the master, at every step; and if the voyage be a trading voyage, consisting of many parts, it is easy to perceive that the owner is altogether at the mercy of his captain, and the direction of the voyage taken out of the owner's hands and placed in those of his servant; a perversion of all commercial ideas so monstrous, that the opinion which leads to it cannot be right. That [**160]  the owner has a right to change the course of the voyage at pleasure, is one of the first axioms in commercial operations, and it has been necessarily conceded on the other side. The inevitable consequence of which is, that the privilege of the captain is ambulatory and contingent, as to the port from which it shall he taken. It depends upon the owner's pleasure, and is known on all hands to depend on his pleasure in directing the movements of the ship. The substance of the stipulation is, that the captain shall carry so much free of freight; but from what port he shall carry it depends on the ultimate pleasure of the owner, and grows necessarily out of his sovereign control over the voyage. Hence, when an owner in the outset, plans a complicated voyage, consisting of many parts, and gives the captain a privilege e.g. of twenty-five tons from the last named foreign port, it is always taken as subject to the condition that the plan of the voyage shall not be changed by the owner, or that if it shall be changed, the captain shall have his equivalent in the same number of tons from whatever port shall, under such change of voyage, become the port of departure for the home port. Such,  [**161]  it is manifest, was the understanding of Donnell, of Pawson and of Graham, and it may be with confidence averred, that such is the understanding of all commercial men. It cannot be otherwise without placing commerce under a load of embarrassments, which would long since have crushed and destroyed it.

If this view of the subject be sound, as it is confidently believed to be, the consent of Pawson to the change of the voyage, is wholly immaterial. The privilege, as a privilege from Canton, fell, when the owner, in the just exercise of his authority, struck out that port from the plan of the voyage. Being, from its nature, dependant entirely on the condition of the ship's going to that port, there was an end to it as soon as the owner determined that the ship should not go to that port; and, however the question was put to the court, the court erred in the positive instruction which they gave to the jury, that this claim depended on the question, whether Pawson had, with a full knowledge of his legal rights, waived this privilege, and consented to the change of the voyage. They were wrong in treating as a reality and a substance what had never been more than a mere shadow, and which [**162]  had ceased to be even a shadow after the change of the voyage on which it depended, and they were wrong in making the extermination of that voyage to depend, in any degree, on Pawson's consent, because its extermination was an act within the sole and perfect competency of the owner alone, and entirely independent of Pawson's consent, or refusal.

But suppose, for the sake of the argument, Pawson's consent to the change of the voyage to have been necessary to put an end to this privilege from Canton; it is respectfully submitted, that that consent is as expressly given as consent in such a case can be given. Not only is it in proof, and that in writing, that he cheerfully acceded to the proposed change of the voyage, but that he recognized the transfer of his privilege from Canton to Coquimbo, and proposed to send home the proceeds of his little capital from Coquimbo, not on the footing of freight, but on the footing of his privilege.

Donnell, in his letter of 26 Dec. 1819 to Pawson, after stating that mature reflection had satisfied him that a Canton cargo could not be realized in Baltimore, proceeds thus--"I therefore revoke and countermand the orders I gave you to proceed [**163]  from Chili to Canton, and now substitute, that you will return with the ship and cargo of copper direct from the coast of Chili to Baltimore." He then proceeds immediately to the subject of the captain's privilege, in these words--"As relates to the disposal and investment of your own funds, you must use your own discretion by investing it in copper, or any thing else, and bringing it with you in the ship--the copper may, (as I hope it will,) be bought on terms that will, with my funds and yours, load the ship very deep, but if necessary you must load her very deep. Should you fail in getting copper on the coast of Chili, you will immediately, on finding it so, proceed from thence to Samarang, in the island of Java, and there invest my funds, and your own, in coffee, (no other article of the produce of the island will answer,) and proceed from thence direct to Baltimore. The government of Batavia may object to your loading at Samarang, being an out port, but you must use every means in your power to obtain from the government a permission, as you will be able to put on board coffee at Samarang, two or three dollars per picol less than at Batavia."

As explanatory of this letter,  [**164]  it is proper to call the court's attention to the description of the captain's privilege, as it stood in the voyage first planned. It will be found at the close of Donnell's letter of the 18th of November, 1819, and is in these words: "To prevent misunderstanding I deem it necessary to state your compensation to be two thousand dollars, payable on your return, with a privilege from Canton not to exceed twenty-five tons, but it is understood that you are not to put any copper or heavy article on board at Chili, as my views are that you completely load her there with copper, and that only for my account." In his postscript to this letter of the 18th Nov. 1819, Donnell anticipates the possibility of being disappointed in procuring copper at Chili, and in that event gives a similar direction with that in the letter of the 26th Dec. as to proceeding to Batavia for a cargo of coffee, and thence direct to Baltimore; so that in the original plan of the voyage, Canton was not contemplated as a port to which the ship would certainly proceed: for in the owner's views of the subject at that time it was made to depend on the contingency of being able to get a cargo of copper at Chili. And we find [**165]  him shifting the captain's privilege at pleasure from Canton to Batavia, and from Canton goods to Java coffee, at pleasure, in the full exercise of his clearly understood rights as owner. So in his letter of the 26th Dec. when he had determined that the ship should not visit Canton, he provides for the captain's privilege by taking off the interdict as to his putting copper, or other heavy articles on board at Chili; and authorises him to bring home his funds in copper, or any thing else he pleases; or if by failing to get a cargo of copper at Chili, he finds it necessary to go to Java, to bring home his funds in coffee. It is hence very manifest what Donnell's understanding of his rights as owner were. What says Pawson to this change of voyage? In his letter of Feb. 7, 1820, from London, he says--"I have had the pleasure to receive your letter of the 26th Dec. in which you are pleased to alter the original intention of the voyage, which will be cheerfully and strictly attended to, and if on my arrival at Chili, I shall find it necessary to proceed to the island of Java, no exertions shall be wanting to have your wishes fulfilled in getting the cargo of coffee only at Samarang." Again,  [**166]  to shew Pawson's distinct understanding that his original privilege from Canton or Batavia was now transferred to Coquimbo, he says in his letter from that place of Sept. 4, 1820, "as I may possibly not have another opportunity, direct to the United States shortly, I would thank you when you make insurance on the ship and cargo, also to insure for my account the same sum which you did me the favour to insure from London here. I think it probable it will be shipped in silver bullion and copper." And again, still more explicitly, in his letter of 4th Nov. 1820, from Coquimbo, he says, "In my former letters I requested you to insure for my account the sum of $ 5,000. I now have to request you will insure $ 1,000 more. If I find the ship too heavy laden with your copper, I shall curtail my privilege in that article, and bring my funds in silver." If this be not a consent, a free, voluntary, cheerful consent, to take his privilege from Coquimbo in lieu of that from Canton or Batavia according to the original voyage, language has lost its meaning, and discussion is idle and delusive.

It is insisted, on the other side, that this was not a question for the court, but a question for the [**167]  jury. Why? Because it is said it is a question which did not depend on letters alone, but was to be inferred from the whole correspondence, and the acts of the parties taken together, and so is exactly like the cases of Laidlow vs. Organ, 2 Wheaton, 183, and Etting vs. Bank of the United States, 11 Wheaton, 75. But it is not so; for it is a question arising upon the letters alone. We do not rely upon a single act of either the parties to aid our construction of the letters. We say, that upon the face of the letters alone there is a clear and cheerful consent on the part of Pawson to the change of the voyage, and the substitution of the privilege from Coquimbo, in lieu of that contemplated in the original voyage. How are these letters to be construed? Not by the technical rigour which is applied to special pleading, or to the old common law conveyances. They are letters written by commercial men, in a course of business, and are to be construed with the freedom and candour which are always applied to such a correspondence, and so construed there cannot be a rational doubt that Pawson freely and cheerfully adopted the substituted voyage and privilege. The court's attention is particularly [**168]  invited to the declaration in his last letter, that if he should find the ship too heavy laden with Donnell's copper, he would curtail his privilege in that article, and bring home his funds in silver. His privilege in what article? in copper. From where? from Coquimbo. Did he mean that he would curtail his privilege from Canton in copper? Did he even propose to bring home copper from Canton? Once more, did Pawson expect to pay freight for the copper which he was about to bring home from Coquimbo? For the court have said, and justly said, that if he meant to rely on his privilege from Canton, he was bound to pay freight on his goods from Coquimbo? Did he expect that he was to pay such freight when he himself expressly declares that he was going to bring it home in part of his privilege, and the rest of his funds, if necessary, in silver.

It is unnecessary to pursue so palpable a proposition any further. It must be manifest to the court, that Pawson knew that Donnell had merely exercised his proper rights in changing the voyage; that Pawson acceded to this change willingly and cheerfully, and perfectly understood that in consequence of that change, and as a necessary part of it,  [**169]  his privilege from Canton to Batavia, according to the original voyage, was now commuted for the same privilege of twenty-five tons from Coquimbo. And as all this appears upon the letters alone, it was a question solely for the court, under the authority of Macheath vs. Haldimand, 1 T. R. 172, 180, and Ferries vs. Walsh, 5 Harr. & Johns. 308.

But the court below instructed the jury, that the right to set up this claim of damages for the loss of the Canton privilege, not only depended on the question, whether Pawson had agreed to waive that privilege, and accept in lieu of it the privilege from Coquimbo, but on the further question, whether he made such waiver and acceptance with a knowledge of his legal rights.

In this last qualification of the instruction it is conceived that there is a double error. 1. In supposing that Pawson had a right to object to the change of the voyage, or to insist on this privilege, as a subsisting privilege from Canton, after the voyage had been changed by the authority of the owner. 2. In putting it to the jury to say, whether such waiver and acceptance were made with a knowledge of his legal rights, when there was not an atom of testimony in [**170]  the cause, to draw that knowledge into question. Every man is presumed to be conusant of his legal rights till the contrary appears. The evidence every where exhibits Pawson as a man of superior intelligence. All his letters and all his actions, are those of a scholar, and a man of judgment and endowments far above the great mass of those who are engaged in similar pursuits, nor is there one scintilla of proof in the whole record tending in the slightest degree to impeach his capacity. And yet it is in this case that the court, sua sponte, raise, for the consideration of the jury, the question, whether Pawson acted with a knowledge of his legal rights. The Court of Appeals, in the case of Davis vs. Davis, 7 Harr. & Johns. 36, took the case out of the hands of the jury on the ground, that although there was some evidence in the cause, it was not such evidence as ought to satisfy a reasonable man of the truth of the proposition. The court of Baltimore county, reversing this rule, refuse to decide a proposition which properly belongs to them as a court, (the construction of the letters) and hand over the whole subject to the jury, on the ground that the proposition submitted to them depended [**171]  on another proposition which belonged peculiarly to the jury, to wit, whether Pawson acted with a knowledge of his legal rights, when there was no evidence in the case which had a tendency to raise this latter question. Thus it is a question gratuitously raised, without a title of evidence to prompt it, and which, thus raised, is supposed to excuse the court for refusing to decide on the construction of the letters, whereas the truth is, that if the question had really been called for by the evidence, the court ought still to have expressed an opinion on the construction of the letters, and to have made that opinion subject to the finding of the jury on the other question of Pawson's knowledge of his legal rights.

But it is alleged that there is evidence tending to show, that if Pawson did waive his Canton privilege, he did it in ignorance of his legal rights. And what is this evidence? It is that the Canton privilege was more valuable than the Coquimbo privilege, and therefore it is not to be presumed that Pawson would have made the exchange if he had known that he had still a right to insist on the privilege from Canton. This argument assumes, 1. That the Canton privilege was [**172]  still a subsisting legal right after the owner had changed the voyage, which has been disproved. 2. It assumes that Pawson, in making his election, had nothing to consider but the value of the one privilege compared with the other; whereas it is manifest that this was a trifle, light as air, compared with the far weightier consideration of permanent connexion with such a merchant as Donnell. 3. The argument goes the length of maintaining the proposition, as one universally true in law, that wherever it appears by the evidence that a man has made a bad bargain, no matter what may be the degree of his intelligence and experience, the question fairly arises whether he was conusant of his legal rights, a principle which will put the sponge to the whole class of commercial contracts. But if all these assumptions and propositions were true, (which they manifestly are not) the court would still have erred in refusing this prayer of the appellant, which called upon them merely to say, that on the face of the letters Pawson had freely and voluntarily consented to the change of the voyage, and the substitution of the Coquimbo privilege in lieu of that from Canton. This the court might have done [**173]  in perfect consistency with the notion that he had done it in ignorance of his legal rights. The court, therefore, looking to the construction of the letters, which belonged exclusively to their jurisdiction, might have told the jury, and were bound so to have told them, that the letters amounted to a free and voluntary waiver of the Canton privilege on the part of Pawson; and then, (if the case had been a proper one for such an addition,) have gone on to add, that, however free and voluntary this waiver was, if the jury should find from the evidence that it was made in ignorance of his legal rights, it did not bind him. But the court refused to give any construction to the letters at all, and threw the whole case upon the jury, on the notion that the construction of the letters even depended on Pawson's knowledge of his legal rights; and this in a case in which if they had been called on to instruct the jury that the waiver depended on Pawson's knowledge of his legal rights, they might correctly, and ought to have refused the instruction on the ground that there was no evidence in the cause to draw his knowledge of his legal rights into question, and therefore no evidence on which [**174]  such a prayer could be properly founded. And this, it is conceived, would have been a much feebler exercise of judicial authority, than that which was properly sanctioned by this court in the case of Davis vs. Davis.

Upon the whole it is respectfully submitted, that this Canton privilege ought never to have been suffered to come into controversy before the jury in this cause; that it is a mere baseless vision, and was so considered by Donnell, Pawson and Graham; and that instead of receiving the countenance which it did receive in the instruction now under consideration, it ought to have been expelled from the cause at the first moment of its appearance.

So much confidence is felt in the views which have been presented of this subject under the appellant's second exception, which we are now arguing, that it is thought unnecessary to add any thing on the appellant's sixth and ninth exceptions, which relate to the same subject.

The appellant's 3d, 4th, 5th, 7th and 8th exceptions, all relate to one and the same subject; the compensation of $ 2000, which was stipulated by Donnell's letter of the 18th Nov. 1819, to be paid to Pawson on his return. It is not proposed to go [**175]  into a rediscussion of all the topics which have been presented to the court in regard to this stipulation. The arguments and authorities bearing on it have been already fully placed before the court on the part of the appellant. Relying on those arguments and authorities, and claiming the full benefit of them, it is intended to confine the further argument to two questions--

1. Whether the contract was not an entire one, and the whole compensation, therefore, lost by the death of Pawson at Coquimbo before he had completed the contract.

2. Whether if Pawson's representatives are entitled to recover a rateable portion of that compensation, the court did not err in the termini which they gave to the jury for the ascertainment of the ratio of compensation.

1. This question arises on the appellant's fifth prayer, which presents the single point of the entirety of the contract, and its defeat by the death of Pawson at Coquimbo before its completion.

Natural justice, it may be admitted, would seem to require that every contract for labour should be considered as divisible and apportionable, and where a party has been prevented by causes over which he has no control, from [**176]  completing his engagements, he should be paid for so much of them as he has faithfully performed. The law, however, leaves it to the parties to make their own contracts; and wherever they have made an express contract the law never interferes to vary that contract upon any notion of natural justice. There is, perhaps, no class of contracts which more strikingly illustrates the truth of this principle than the contract for rent. A rents of B, a storehouse on a wharf in town, and stipulates expressly to pay him so much rent at the end of the quarter or year. The house is burnt down the next day, and the tenant has no use of the property at all; yet he must pay the rent. A whole wharf was consumed in Norfolk by the great fire of February, 1804. The houses which covered that wharf, (Campbell's wharf,) were wholly in the hands of tenants. These tenants, with their families, were all unhoused in the severest part of the winter, and many of them lost their goods, as well as their houses. The extent of the calamity excited universal sympathy. They were unable to repair; the misfortune was one beyond their control. They had lost the enjoyment of that for which alone they had stipulated to pay [**177]  the rent. The landlord was a minor; and his guardian was the late Judge Tucker, who considered himself bound to act according to law. The tenants insisted on an abatement of the rent. Natural justice seemed to require it. But the law was clear. Their contracts were express; and for that reason alone they were held bound to pay the rent. In the course of the investigation a case was cited from Aleyn's Reports, where a tenant had been dispossessed, and held out by a hostile invasion of the kingdom. Yet he was held bound to pay the rent by force of his express contract. That was a case in which natural justice seemed to forbid the demand; but all considerations of natural justice were silenced by the express contract of the parties, and the unwillingness of the law to interfere with those contracts.

It is on this ground that it has become a principle of law in the construction and enforcement of contracts, that "unless there be some express stipulation to the contrary, whenever an entire sum is to be paid for the entire work, the performance or service is a condition precedent; being one consideration and one debt, it cannot be divided." These are the words of Starkie in his 3d volume,  [**178]  1765; and he adds "this holds equally, whether a specific price has been agreed on or not. It is universally incumbent on the plaintiff to prove performance." In the American edition of Starkie the court will find under note (k,) and note (1,) to the above cited page, a collection of British and American decisions, all going to illustrate and fortify the position, that a contract made entire by the parties, cannot be divided by the court, and several of those, it is believed, at least as strong, if not stronger, than the case now under consideration.

Thus in the modern case of Ellis vs. Hamlen, 3 Taunt. 52--"It was held that a builder who undertook a work of special dimensions and materials, and deviated from the specification, could not recover on a quantum valebant for the work, labour and materials."

In The Countess of Plymouth vs. Throgmorton, 1 Salk. 65, the defendant's testator had appointed the plaintiff to receive his rents, and promised to pay £  100 a year for the service, and the testator died after the plaintiff had served him for three quarters of a year, and the court held, that the contract being entire could not be divided. In Cutter vs. Powell, 6 T. R. 326,  [**179]  where the employer engaged in writing to pay a sailor the sum of thirty guineas, provided he proceeded and continued and did his duty on board for the voyage, and before the end of the voyage the sailor died, it was held that the contract was entire, and that as the service, which was a condition precedent, had not been performed, nothing could be recovered.

Is it or is it not to be considered as a principle of law, that where an entire compensation is stipulated to be paid for an entire service, the whole service must be performed as a condition precedent to the demand, and that there can be no division or apportionment of the payment for a part performance of the service? It seems impossible to deny it. Nor will it do to speak of this principle as antiquated and obsolete: for it is traced through the British books down to Starkie, one of the most recent and authoritative writers, who has engrafted the principle on his text as an existing and solid principle of the English law; and the host of cases quoted by the American editor, shows how extensively the principle has been recognized and acted upon in the United States.

It is indeed admitted by the learned counsel on the [**180]  other side, "that if from the words of the contract it appears that the parties intended that the entire performance should be a condition precedent to the payment of any part of the compensation, then such condition, like every other condition precedent, must be strictly and entirely performed. For the parties have a right to contract as they please. But in order to produce this result, it must clearly appear from the words of the contract that such was the intention of the parties; and such was the case of Cutter vs. Powell. The same principle prevails in commercial contracts.

This admission is taken in the terms in which it is stated, (and it is correctly stated) and we are willing that this case shall be tested by it. It must clearly appear from the words of the contract, that it was the intention of the parties, that the entire performance should be a condition precedent to the payment of any part of the compensation. But when does the law hold such intention clearly to appear from the words of the contract? Let Starkie answer the question--"whenever an entire compensation is to be paid for the entire work, the performance or service is a condition precedent, being one consideration [**181]  and one debt, it cannot be divided"--"unless there be some express stipulation to the contrary." The law then considers this intention of the parties that the entire performance shall be a condition precedent to the payment of any part of the compensation, as always clearly appearing from the words of the contract, where an entire compensation is to be paid for the entire work, unless there be some express stipulation to the contrary. Such is the legal construction of such a contract; and such will be its fixed and final construction, unless there shall be some evidence of a general and known usage acting upon such contracts to vary its construction. In the case of Cutter vs. Powell, the court, after stating the construction of the instrument upon its face, admitted that it would be modified by proof of a general usage acting upon such contracts, to make them divisible; and they stayed the ultimate judgment to let in such proof if it could be adduced, feeling manifestly all the unwillingness to enforce the legal construction of the instrument which can be possibly felt in the case at bar, if parol proof of such a usage could be adduced. But it appears by the original report of the [**182]  case that no such usage could be adduced, and the instrument necessarily had its legal effect.

It will be understood as admitted by us, that general usage, or, what is the same thing, a general understanding in the community, founded on such usage, will control the construction of these contracts, and render divisible and apportionable a contract which upon its face would be indivisible according to the foregoing rule. An instance of this is put by Lawrence, Justice, in Cutter and Powell: for he said "that a common servant, although hired in a general way, was to be considered as hired with reference to the general understanding upon the subject, that the servant shall be entitled to his wages for the time he served, though he do not continue in the service for a year." Here he puts the course of decision upon the general understanding, founded, manifestly, on the general and known usage, which usage always enters into the contract as a part of the contract. And he confines the remark to common servants, by which he is understood by the annotator to Starkie, to mean domestic servants: for there is no usage or understanding, it would seem, as to servants in husbandry, with regard [**183]  to whom, therefore, the contract takes its legal and natural effect of throwing on the servant proof of the performance of the whole service, as a condition precedent to his right to demand compensation. Hence, in the case of The King vs. Whittlebury, 6 T. R. 467, the same Justice, Lawrence, observed "that nothing could be due to the servant, (who was it seems a servant in husbandry) till the completion of the year, or the end of the service." The same principle was decided by Lord Ellenborough, as to a servant in husbandry, in the case of Spain vs. Arnott, 2 Starkie's cases, 265. The learned counsel, on the other side, seems to suppose that these cases decide nothing but as to the time of bringing the action; that is, that the action, for the part of the wages due, cannot be brought till the end of the year. On the contrary, they are understood by us as being decided on the very principle now under discussion, to wit, that the entire performance of the contract is a condition precedent to the demand of compensation, and the whole wages are forfeited by the failure of any part of the performance. Comyns, in his Digest, tit. Justices of the Peace, (B 63,) says "if a servant depart from [**184]  his service he shall lose his whole wages"--for which he cites Bro. tit. Labourer, 40, and the same law is laid down from Dalton's Justice, in the note already cited from Starkie. Contracts with mariners are subject, it is presumed, to the same law of usage, thus modifying the terms of a contract, which would otherwise be considered as a condition precedent, as is manifest would have been done in the case of Cutter vs. Powell, if any such usage could have been shewn. And on the same footing of usage and general understanding rests, it is presumed, the construction of contracts for the hire of slaves in this State, if indeed the law has been ever so judicially settled, for which, however, no decision is quoted. In England we have seen it would be otherwise as to servants hired for the purposes of husbandry.

On this review of the authorities it may be fairly considered as established, that wherever an entire sum is stipulated to be paid for an entire service, the contract is indivisible, and the performance of the entire service becomes a condition precedent to the demand of any portion of the compensation, unless, in the language of Starkie, there be some positive stipulation to [**185]  the contrary, or unless there be some general understanding or usage in regard to such contracts that they shall be apportioned. Now with regard to a positive stipulation to the contrary, none such can be pretended in this case; and with regard to usage or general understanding, none such can be pretended to have been shewn or to exist in regard to contracts like this with a supercargo. And it will not do to borrow such usage or understanding from other classes of contracts and apply them to this; to say for example that, in given cases, the contracts of mariners of domestic servants in England, and hired slaves in this State, have been apportioned; and then claim the analogy as applying to this contract. If this were allowable the case of Cutter vs. Powell would never have been decided, for there the analogy was close and at hand. The contract in that case was the contract of a mariner, and it would not have been denied that the common contracts of mariners were in some cases apportionable; but this analogy, close as it was, as belonging to the same class of characters and the same description of services, was not permitted to be applied to the specific description of contracts before [**186]  the court, but the court called for proof of the usage as bearing on that particular form and species of contracts. So, if the analogies now offered would have sufficed, the acknowledged usage to apportion the contracts of domestic servants would have been permitted to be brought to bear on the contracts for servants for the purpose of husbandry. But it was not permitted, and the impassable line of demarcation between mariners under those two forms of contract, and servants under those different species of engagement, proves that in that country at least the courts are not disposed to indulge in this loose transfer of usage and understanding from one class of contracts to another. For it is manifest to these courts, and must be obvious to every one who will look steadily at the subject, that if in answer to the principle of law which has been conceded with regard to the entirety of a contract, it be enough to say and to show that some contracts entire in form are apportionable by force of usage, the principle is no longer of any value; nay it has no longer an existence; it is virtually exploded, if such an answer will suffice because the same answer may be given to every objection [**187]  founded on the entirety of a contract. If this principle with regard to the entirely of a contract, which grows entirely out of respect to the intention of the contracting parties, and their sovereign right to bargain as they please, be immoral or pernicious, and it is thought better that courts should not only expound but make bargains for their fellow-citizens, let the matter be avowed openly and above board, and let the English principle be publicly exploded. But let us not profess to admit and respect the principle in terms, while we explode it in practice, and render it virtually a nullity.

This, then, be it remembered, is a contract with a supercargo, as to which species of contract there is no proof in the cause of the existence of any usage of understanding explanatory of the contract. It is a contract, then, the construction of which depends solely upon its own terms, and the only remaining question would seem to be, is it a contract in which an entire compensation is stipulated to be paid for an entire service? This question can only be answered by referring to the letters of Donnell, which state the whole contract, both the service and the compensation. The letter of [**188]  the 18th November, 1819, chalks out the whole service in detail. It is a minute specification of the duties which Pawson was to perform; carries him around the whole voyage; and after this specification of the services, concludes thus--"to prevent misunderstanding I deem it necessary to state your compensation to be $ 2,000, payable on your return." Nothing seems to be clearer than that this is one entire compensation stipulated for the entire service. It is not at the rate of $ 2,000; but the sum of $ 2,000, in solido, payable on Pawson's return, and clearly payable for the entire service. If there be any truth in the principle therefore, or any case to which it is to be permitted to apply, this is such a case, unless there be some positive stipulation to the contrary, which is not and cannot be pretended, or some proof of usage and understanding to the contrary applicable to contracts in this form with supercargoes, which can be as little pretended.

In opposition to this view of the subject, it is intimated rather than directly averred in the opposing argument, that this principle rests on ancient decisions. For the learned counsel, after having quoted Sergeant Williams' note [**189]  (4,) to Pordage vs. Cole, 1 Saund. 320, and 2 Starkie's Ev. 643-4, and note (n,) proceeds with the following inference from those authorities: "Whatever, therefore, may have been the ancient decisions upon this subject, it has for many years been settled in the English courts that in ordinary contracts, with or without seal, the defendant, according to the principles of the common law, is liable in proportion to the benefit derived from the contract, although he may not have received the whole consideration for which he stipulated, provided the plaintiff is not in fault, and does not possess the power to perform the whole stipulation. This is the general rule applicable to all contracts. It is, however, admitted, that if, from the words of the contract, it appears that the parties intended that the entire performance should be a condition precedent to the payment of any part of the compensation, then such condition, like every other condition precedent, must be strictly and entirely performed." So that the learned counsel would seem to give the rule, as he would have it, to be the general rule and the modern rule; and the principle on which we insist, as an exception from that general [**190]  rule, resting only on ancient decisions, (one of which, that in the case of the Countess of Plymouth vs. Throgmorton, Salkeld 65, he seems to think was misunderstood by the court of King's Bench,) and deserving very little quarter on the score of morality. There is certainly no want of professional address in this mode of presenting the subject. But we apprehend, that when the authorities relied on to maintain this view of the case shall come to be examined, it will be found that these two rules of law, instead of maintaining the relation of a general rule and an exception, are two separate and independent rules relating to different classes of cases, and each, in its respective sphere of action, equal in generality and dignity to the other. Let us make this examination of these authorities as briefly as possible.

The first of them, as cited on the other side, is Pordage vs. Cole, 1 Saunders' Reports, 320, (n. 4.) On turning to this note it will be found that the whole business of the note was to shew in the first place the artificial and subtle distinctions on which the question of dependent and independent covenants frequently turned in the old books; and in the next place to [**191]  offer a few rules by way of test on that obscure and much mooted question of the law. After observing that covenants, &c. are to be construed to be either dependent or independent of each other according to the intention and meaning of the parties, and the good sense of the case, and that technical words should give way to such intention, he proposes the following rules for the discovery of such intention, in order to enable the pleader to distinguish when it is necessary in a declaration to aver performance on his own part. These rules are worthy of attention in this case; first, because of their analogous bearing; and secondly, to enable the court to estimate the value of the passage quoted from this note on the other side. The first rule proposed by Sergeant Williams, is this--1. If a day be appointed for payment of money, or part of it, or for doing any other act, and the day is to happen or may happen before the thing which is the consideration, is to be performed, the covenants are independent, and an action may be brought for the money, &c. before performance, for it appears that the party relied upon his remedy, and did not make the performance a condition precedent. Sergeant [**192]  Williams then offers his second rule in these words: "But, 2. When a day is appointed for the payment of money, &c. and the day is to happen after the thing which is the consideration of the money, &c. is to be performed, no action can be maintained for the money, &c. before performance." The court is requested to apply this rule to the case at bar, and they will see that it is decisive of this question. Sergeant Williams proceeds--3. Where a covenant goes only to part of the consideration on both sides, and a breach of such covenant may be paid for in damages, it is an independent covenant, and an action may be maintained for a breach of the covenant on the part of the defendant without averring performance in the declaration. 4. But where the mutual covenants go to the whole consideration on both sides, they are mutual conditions, and performance must be averred. 5. Where two acts are to be done at the same time, on the same day, neither can maintain an action without shewing performance of, or an offer to perform his part, though it is not certain which of them is obliged to do the first act; and this particularly applies to all cases of sale. This is a skeleton of the whole note,  [**193]  and the court will find by reference to it that each of these five rules is separate and distinct from the rest, embracing separate and distinct classes of cases, and neither of these rules proposed by the author as connected with or at all influencing the decisions of cases falling under any other rule. The learned counsel, not averting to this structure of the note, and the distinct classes into which the cases are thrown under these several and distinct rules, speaks of them thus: "The cases upon this point (of conditions precedent) are collected together and the rule laid down in Pordage vs. Cole, 1 Saund. 320, (note 4) as relates to sealed instruments.

"The conclusion from all the cases is stated as follows:" and then he gives a quotation, which suits the purpose of his argument, and which he exhibits as Sergeant Williams' result from a view of all the cases touching the subject of conditions precedent, whereas the learned Sergeant himself declares it to be his conclusion only with regard to that class of those cases which falls under his third rule, and which he is treating as entirely separate from those cases which belong to his other rules. That third rule embraces, as [**194]  we have seen, those cases in which the covenant goes only to a part of the consideration on both sides, and in which the party who complains of incomplete performance, can redress himself by a cross action for damages on account of that short performance. After citing several cases as illustrative of this rule, the Sergeant proceeds with the words quoted, "Hence it appears, that the reason of the decision, in these and other similar cases," (that is, cases in which from the form and nature of the contract the covenant goes only to a part of the consideration on both sides, and in which, from the independent character of the covenants, the party may redress himself for the incomplete performance of the covenant on the other side by a cross action,) "besides the inequality of the damages, seems to be, that where a person has received a part of the consideration for which he entered into the agreement, it would be unjust that, because he has not had the whole, he should therefore be permitted to enjoy that part without either paying or doing any thing for it. Therefore, the law obliges him to perform the agreement on his part, and leaves him to his remedy to recover any damage he may [**195]  have sustained in not having received the whole consideration." Now, before the learned counsel can have the benefit of this conclusion, he must shew that this is one of those cases to which alone Sergeant Williams applies this conclusion; that is to say, that it is a case in which, from the form and nature of the contract, the covenant goes only to a part of the consideration on both sides. The fallacy of the argument consists in supposing this to be a general conclusion applicable to all sorts of covenants; whereas Sergeant Williams limits it expressly to the specific class of cases embraced by his third head; that is to say, to cases where the covenant goes only to part of the consideration on both sides, and a breach of such covenant may be paid for in damages, which he says makes an independent covenant. And having cited all the cases which belonged to this head, and exhausted his own remarks upon it, among which is the passage quoted by the counsel on the other side, he proceeds to his fourth class in these words: "4. But when the mutual covenants go to the whole consideration on both sides, they are mutual conditions, and performance must be averred." Now, in applying the general [**196]  conclusion to the case at bar, the counsel begs the question: for he assumes that this case belongs to the third class, and not to the fourth. Whereas we insist that it belongs to the fourth class to which that general conclusion has no relation; and we prove that it belongs to the fourth class, first by the test prescribed by Starkie, that it is an entire consideration stipulated to be paid for an entire service; secondly, by bringing to bear upon it, the test given by Sergeant Williams under the second head in his note, to wit: "that a day is appointed for the payment of the money, and the day so appointed is to happen after the thing which is the consideration for the money is to be performed;" in which case Sergeant Williams adds, "no action can be maintained for the money before performance." The day here appointed for the payment of the money was after Pawson's return--payable on your return--which was necessarily after all the services had been performed.

We are much deceived, therefore, if this note, instead of operating favourably to the other side, will not, when it is carefully dissected and attended to, be found to operate the other way.

The passage cited from [**197]  2 Starkie, 643--4, when taken in connexion with the context and with the class of cases of which the author was treating, will be found to have no just relation to this question. Starkie is there treating expressly of the action for goods sold and delivered. He begins this investigation in page 634, and pursues it down to the passage quoted. In page 640, he says, when the goods which have been delivered do not correspond with the contract, the vendee has a right to repudiate the goods so delivered in toto, and if he do so, the vendor cannot recover; but if he choose to keep the inferior goods so delivered, he is considered as adopting them in satisfaction of the contract. He then proceeds, in page 642, to contemplate the case where the contract cannot be rescinded, as where the goods have been used before the inferiority has been discovered; in this case he says the vendor is entitled to recover not the stipulated price; and then comes in the passage quoted on the other side in this connexion--"For in strictness the plaintiff who has not performed that which he engaged for, is not entitled to recover at all; if he contracts to build a dwelling-house, he is not entitled to recover for [**198]  building a stable. But still if the defendant be benefitted to a certain extent, and does not repudiate the contract in toto, it seems to be a rule of policy and convenience, as well as of equity and justice, that the plaintiff should be allowed to recover to the extent of the benefit derived by the defendant, and no further, &c." The court perceive, therefore, that the author is here treating of a contract with regard to goods sold, in which the vendee may, if he choose, repudiate the contract, and return the goods; but in which he has chosen to receive and use them. The passage quoted is in application to contracts of that character. But how could Donnell repudiate the contract in this case and return the partial services which Pawson had rendered. The principle has no practicable application to this case. And that it is not of universal application, the case of Ellis vs. Hamlen, 3 Taunt. 52, proves; where it was decided that a builder who undertook a work of specified dimensions and materials, and deviated from the specification, could not recover on a quantum valebant for the work, labour and materials.

The cases cited by the opposite counsel from Abbot, Peter's admiralty [**199]  decisions, &c. relate exclusively to mariners; and are founded on the laws of Oleron, Wisbuy, and the Hanse-towns, and the ordinance of Louis the XIV. This is a class of contracts which stands by itself, and so peculiarly by itself, that we have seen the court of King's Bench, in Cutter vs. Powell, refusing to extend the principles and usage of these contracts even to the case of a mariner when his contract was in a peculiar form which removed it from the general ground of mariners' contracts. But the case now before the court is not that of a mariner at all; but of a supercargo, whose contract is not to be tested by the principles established by those ancient laws and ordinances in favour of a particular and favoured class of men; but which is to be tested by the general principles applicable to other contracts, which have been already cited.

It is true, as the learned counsel has remarked, on the other side, that in the case of Cutter vs. Powell, two of the judges did advert to the circumstance, that the wages were unusually high, as a proof that they were intended to be contingent. But they did not ground their decision on that fact. It is manifest, that they only called it [**200]  in aid to fortify the construction, which they had given to the contract on its face. And it is equally manifest, that without that circumstance the contract would have received the same construction. The court is, therefore, respectfully requested to compare the terms of that contract with those of the contract in the case at bar; and we are much mistaken if they will not find that the contracts were substantially the same.

The learned counsel on the other side, supposes that Justice Lawrence mistook the decision in Portage vs. Cole, 1 Salkeld, 65. If he did, Starkie also mistook it in the note before cited, from his third volume, page 1765-6, where he presents the case as deciding the same point, "that the contract being entire could not be divided." And it is manifest, that Salkeld himself mistook it, too, or else his report is entirely delusive and deceptive. And with all the unaffected respect, which I feel for the learned counsel on the other side, I cannot help thinking that Justice Lawrence, Starkie, and Salkeld, having no particular interest to bias their judgment, will be quite as apt to understand correctly the point of an English decision, as our learned friend on [**201]  the other side, whose judgment, without any disrespect to him, may be suspected of not being quite so unbiassed.

The learned counsel seems to think, too, that he has given quite a sufficient answer to the argument drawn from the time of payment of the $ 2000, to wit, that they were to be payable on Pawson's return, by referring to 1 Powell on Contracts, 267--8, and to Abbot on Shipping, 433, 434, (note 1,) and by adding, that "the words in Donnell's letter do not create a condition, they are modal only, and relate to the manner in which the contract shall be performed."

It is wonderful that this magical word, modal, did not occur to the acute and learned Sergeant Williams, when he was compiling the note before quoted. We find there, that in utter despite of this cabalistic term, he has erected a whole class of dependant covenants, (the 2d class,) on this circumstance alone, of the time, payment being fixed at a day posterior to that at which the services were to be rendered; which he could never have done, if he had been aware of the omnipotence of this word modal.

With regard to Powell, he is looking to a very different case from this. He is by no means affirming it [**202]  as a proposition of universal truth, that time is never of the essence of a contract, but is always modal. He is asserting merely, what may be safely admitted, that there are cases in which it is merely modal. "We must carefully distinquish, says he, between conditions annexed to contracts or agreements, and circumstances annexed, which seem to import conditions, but which are modal only; neither suspending, disannulling, nor altering, the obligation of them, but only relating to the manner of performance; as that an agreement shall be performed at a certain day, or in a certain place. And he then puts several cases, by way of illustration, which have no reference to the mutuality and dependence of covenants, (which is the very question here,) but which regard the construction of a covenant contemplated on one side only, and in which he says, in effect, that the time and place are not of the essence of the contract, but are modal only, leaving the essence of the contract untouched. This is quite a familiar principle; but it is one of a very different aspect from that which we are now considering, and which formed the subject of Sergeant Williams' note, which is the mutuality or independence [**203]  of covenants; and where, as we have seen, the fixing a day of payment, subsequent to the time at which the service is to be performed, creates at once a condition precedent with regard to the performance of the service.

The passage cited from Abbot is the same on which we have already commented, the case of contracts with mariners, resting on a body of old sea-laws peculiar to themselves, and from which, therefore, no analogy can be fairly brought to bear on contracts with any other description of characters which rest on the general law.

After this review of the law on the subject, it will only remain for the court to say, whether they acknowledge the English principle, that where an entire compensation is stipulated for an entire service, the contract is indivisible, and the performance of the whole service becomes a condition precedent to the demand of the compensation.

2. But now admitting, argumenti gratia, that this contract is divisible, and the compensation to be apportioned, did the court below assume the proper termini of the service to make the apportionment? We say they did not; for that this is a contract with a supercargo, whose duties begin and end with [**204]  the voyage, so long as there is a cargo on board. What is a supercargo? He is one placed over the cargo as his name imports. He is placed over the cargo, just as the master is placed over the ship. The master represents the owner of the ship; the supercargo represents the owner of the cargo. "From the general nature of the master's employment, he is a stranger to the cargo, except for the purposes of safe custody and conveyance." 2 Livermore, 214.

"But when the character of supercargo is superadded upon that of master, (as in this case,) the person in whom these characters are united, stands in the relation of agent to two distinct principals at once. To these principals he owes distinct duties, according to the nature of the business in which they have employed him; for a breach of these duties, he is distinctly responsible to them; and they are separately liable for the injurious consequences of his misconduct in those things which respect his peculiar duties to them." Ibid.

The master clothed with these double characters may, in his character of supercargo, do with the cargo what the owner, if present, might do. He may (for example,) as supercargo, accept the cargo at [**205]  a port short of the port of destination, and the owners of the ship will be entitled to freight. He may, as supercargo, accept and sell the goods at a port of necessity, which he could not do as master. 2 Livermore, 215, 216.

From the circumstance that the supercargo represents, exclusively, the owner of the cargo, that he has authority over the cargo in all cases of unforeseen emergency, to act for the interest of the owner of the cargo, it is his duty to accompany the cargo, in order to be ready to meet all such emergencies, and take care of the interest of his principals, and consequently, to accompany the cargo to its final port of delivery,

The court below seemed to be of opinion, that as soon as the cargo was purchased, and put on board at Coquimbo, and the bills of lading were signed, the duties of the supercargo were at an end, because the transportation and delivery of the cargo at the home port became then the duty of the master of the ship. The master, however, as we have seen, is a stranger to the cargo, except for the purpose of safe custody and conveyance. Now, suppose the ship to have been driven into a port of necessity, with a damaged cargo, which made it [**206]  the interest of the owner to have an immediate sale--the master could not sell it, but the supercargo might. Suppose a case of capture and carrying into port, where the interest of the owner of the cargo might call for negociation, ransom, or sale. The powers of the supercargo are ample for all these purposes, but not so those of the captain. These contingencies, to be sure, might not happen. But they might; and as they might, it was the duty of the supercargo to have been on board, to meet them and take care of the interest of his principals. It is fairly to be inferred, that it was the intention of the owner of the goods, that the supercargo should be on board, to meet all possible emergencies; and hence the stipulation, that his compensation as supercargo should be payable on his return.

The court below, therefore, it is conceived, erred in fixing the last terminus of the supercargo's duty at the signature of the bills of lading at Coquimbo. It ought to have been fixed at the return of the cargo to Baltimore; the supercargo being as indissolubly wedded to the cargo as the master is to the ship, and having no more right to leave the cargo than the master of the ship.

It [**207]  is said, however, by our adversary, that if the court have erred in this respect, we have no right to complain of it, because in our prayer we fixed the termination of Pawson's services at the investment of Donnell's funds in the return cargo; whereas the court, giving us more than we asked, have fixed it at the signature of the bills of lading.

There are two answers to this:

1. That the prayer is misunderstood. It does not make the investment of Donnell's funds the termination of Pawson's service. It refers to the investment with reference to the time of his death. He died before he had even completed the investment of the funds. The word even, it is true, is not there. But it is submitted to the court, that this reciting part of the prayer fairly admits that construction. It is not, however, in the recitals of fact, in a prayer, that you look for the prayer itself. To find the point of the prayer, you look only to that which is the prayer: and in this fourth prayer, the prayer is, that the court will instruct the jury, that the compensation was subject to abatement on two grounds. First, for the abridgment of the voyage, by striking out the Canton trip, which formed a part [**208]  of it, when the compensation was fixed. Second, for that portion of the contemplated services of Captain Pawson, which were lost to the defendant by his death at Coquimbo: not specifying what those services were, but leaving it open to the defendant to insist, as he is now doing, that those services reached down to the return of the cargo to Baltimore. At best, it is mere matter of inference on the other side, that the defendant's counsel considered the services of Captain Pawson, as supercargo, to end with his investment of Donnell's funds.

2. Suppose the plaintiffs construction of this prayer of the defendant's right: What then? If the court had stopped with the simple rejection of a prayer, wrong in itself, there would have been no ground of complaint. But the court do not stop with a simple rejection of the prayer. They go on to superadd an instruction of their own, different from the prayer; and the exception is not only to the rejection of the prayer, but also to the opinion and direction of the court. And surely, in the appellate court, it is perfectly competent to the appellant, on such an exception, to test the accuracy of that opinion and direction, by the rules of law.  [**209]  An error in his own prayer cannot deprive him of this right. For in this part of the subject, the question is not, whether the prayer was right, but whether the opinion and direction were right. However erroneously a party may pray when the court, after rejecting the prayer, proceed to give an original opinion and direction of their own, they undertake to pronounce the law of the case, for that is their function. And on an exception to such opinion and direction, the question is, "have the court pronounced the law of the case?" And not, "have they given the appellant something more or better than he asked for?" Have they given him all that he is entitled to? Not, have they given him more than in a mistake of his rights he had asked.

We hold the question, therefore, to be entirely open to us; and the court's opinion and direction were wrong, for the reasons which have been assigned.

We have concluded the argument on Donnell's appeal. But as the plaintiffs counsel in the cross appeal, are about to reply on his points, we beg leave to throw together here, for consideration, the arguments which strike us as supporting the court's opinion under the plaintiff's first, second and [**210]  third bills of exceptions, and as a full answer to those urged by the opening counsel on the other side.

The attempt of the opposite argument is to throw on Donnell the loss of the gold, which was confiscated at Guasco. The question arises on the plaintiffs' three exceptions, which fully exhibit all the grounds on which the plaintiffs claimed the appropriation of this gold, and the loss of it, to Donnell, and on which Donnell, by his counsel, resisted it.

The question seems to be a very simple and easy one, when impartially and candidly considered, and the dates of the several transactions carefully noted.

Pawson set out upon this voyage in the double character of master of the ship, and supercargo, for Donnell. The instructions addressed to him in the character of supercargo, are found in Donnell's letters, which he bore and accepted as the guide of his actions. In Donnell's letter of the 18th November, 1819, he says to Pawson, in this character of supercargo, "with the ship and the coin on board, you will proceed to the port of Coquimbo, in Chili, for the purpose of loading entirely with copper, and with it proceed to Canton." Again, "if you have the means of completing [**211]  the purchase, you must put on board at least 12,200 quintals." Again, speaking of the probability of Pawson's receiving additional funds from Mr. M'Clure, he says, "Should you see him, and he has any funds of mine, or that he has departed from thence, and you find he has placed any of my property in the hands of any person there, in either case, I authorise and empower you to receive and carry it with you, either in copper, or Spanish dollars of the old coin." Thus anxiously repeating the instruction, that all his funds should be invested in copper, and guarding against the possibility of any other investment, more especially a metallic investment, except in Spanish dollars, and those, too, of the old coin. In the close of the same letter he says, "To prevent misunderstanding, I deem it necessary to state your compensation to be $ 2000, payable on your return, with a privilege from Canton, not to exceed twenty-five tons; but it is understood that you are not to put any copper or heavy article on board at Chili, as my views are that you completely load her with copper, and that also for my account." The same solicitude of the owner to invest the whole of his funds in copper, is kept [**212]  up in his letter of the 26th December, 1819, in which he changes the voyage by striking out the trip to Canton. That Pawson perfectly understood and acceded to Donnell's views on this subject, as to the investment of all Donnell's funds in copper, is clearly established by his letters of the 15th August, 1820, and the 4th November, 1820, from Coquimbo. In these letters he states his progress in the investment of Donnell's funds in copper. In the last letter he says, "there is now purchased for your account, 9,500 quintals, nearly 7000 of which is on board, and the remainder in Guasco, whither I shall proceed, and take it in, as soon as I get my crew from Valparaiso," &c. And in a subsequent part of the same letter, he says--"I shall, however, be guided by my judgment as the ship comes down in the water, and if possible, bring the whole of your funds in copper." And again in the same letter--"If I find the ship too heavy laden with your copper, I shall curtail my privilege in that article, and bring my funds in silver." It will be observed, that he says in the last letter, he had already engaged for Donnell 9,500 quintals of copper, 7000 being already on board, and the rest at Guasco.  [**213]  But there were at Guasco, as the result has shewn, 3,015 quintals, making an aggregate 10,015 quintals. We have seen Pawson's determination, already expressed in his letter, to curtail his own privilege, in order to accomplish the primary object of placing all Donnell's funds in copper. And as demonstration of the same purpose, in the discharge of his duty to his employer, he declares to his agents, Edwards & Stewart, that he would appropriate to himself only 150 quintals of the copper at Guasco, if the ship would not take more than 10,000 quintals, and to carry home the rest of his funds in Chinchilla skins and silver. See the letter of Edwards & Stewart of January 19, 1821. These were his declarations, virtually his instructions, made to his agents, Edwards & Stewart, before his death. In pursuance of these instructions, they ship for Pawson his 150 quintals, (short only by 23 lbs.) leaving applicable to Donnell's funds the whole residue of the copper brought home, which more than obsorbs all his funds.

Thus, before Pawson's death, and while he was yet the agent of Donnell, all Donnell's funds had been invested in copper, in strict compliance with Donnell's instructions, and [**214]  Pawson's engagements and avowed purpose. Pawson's death, then, left none of Donnell's funds at the disposal of Edwards & Stewart. It left at their disposal only Pawson's funds and Goddard's. These had not been appropriated, except in the 150 quintals of copper for Pawson. And Edwards & Stewart fearing to expend them in the manner which they declare to have been indicated by Pawson, (to wit, in silver bars,) expend them in silver, gold and Chinchilli skins. These were purchased with Pawson's funds, because the previous investment of all Donnell's, according to his orders, left no other funds but those of Pawson & Goddard at their disposal; and the attempt to throw the loss of the gold on Donnell, as if it had been his, is one of which the justice has not yet been shewn.

On what ground is the attempt placed? The counsel say that Edwards & Stewart bought the gold for Donnell; and what is their proof? It is this:

"The gold is invoiced as Donnell's; it is put on board, and a bill of lading taken for Donnell. The silver, on the contrary, is invoiced as Pawson's, and put on board as Pawson's, as per bill of lading."

The distribution thus made by Edwards & Stewart is treated [**215]  as a judicial sentence by these gentlemen, on the rights of the parties.

There would be a little more colour for this, if those gentlemen had professed to have acted with full information; and to have intended to decide on the rights of the parties. Even then, however, we might have objected to their authority to settle the rights of Donnell by their arbitrament, no such authority having ever been communicated to them.

But there is no occasion to take this ground; for those gentlemen never did profess to act as agents for the respective parties; or to judge of their claims, or to make a final distribution and adjustment of their respective rights.

On the contrary, in their letter of 19th January, 1821, they expressly disclaim any purpose of deciding between Pawson and Donnell. They profess their want of sufficient information to guide them. They do not even dare to follow out what they believe to be Pawson's intentions. If they had, they would have invested the whole of his funds, (after the 150 quintals of copper,) in silver bars and Chinchilli skins. But even this, they do not venture to do. They prefer, they say, passing the whole of Pawson's balance to Donnell; leaving [**216]  it to him to settle with Pawson's representatives in the manner he, Donnell, might think most just and equitable.

Again in their letter of the 28th January, 1821, they apologize for the manner in which they had shipped these articles--their words are "we have only to beg you to call to mind, in case that every thing is not exactly correct, the disadvantages we have been under from the sudden death of Captain Pawson."

Here, then, is a strange attempt to attach to the acts of these gentlemen, a consequence which they themselves never dreamed of attaching to them, and while they declare that they are acting by conjecture, in the necessity thus thrown upon them by the sudden death of Pawson, and while they also declare that their purpose is to refer every thing to Donnell's knowledge of the rights of the parties, because of his better knowledge of these rights, the court are called upon, in the teeth of this declaration, to consider these gentlemen as acting with full light and with full power, and as intending to make a final and judicial disposition of this subject between Donnell and Pawson.

Let us proceed a step farther. Let us impute to these gentlemen, a purpose which [**217]  it is manifest they never entertained, to decide upon the rights of these parties. What was their power; what their real situation?

These gentlemen had been appointed by Pawson, in his lifetime, to purchase the copper for the Chesapeake. (See his letter to them, of the 19th August, 1820.)

In his letter of September 4th, 1820, to Donnell, he informs him he had so appointed them to purchase the Chesapeake's cargo.

Pawson, then, was the agent of Donnell, acting under written instructions to which he had assented. Edwards & Stewart were his sub-agents in executing the duties confided to him by Donnell. They were, then, employed by him in executing those duties, under this sub-delegation of power, and under his superintendance. Their whole power was derived from Pawson's appointment; and, consequently, the limits of Pawson's power, marked the limits of their with regard to Donnell. For Pawson could not delegate to them a power which he did not himself possess. But he, Pawson, had no power to buy gold for Donnell; and therefore, he could delegate none such to Edwards & Stewart.

During Pawson's life, they were acting under his superior and controlling authority. The acts [**218]  done during Pawson's life were conclusive, as between him and Donnell. The rights acquired by Donnell under these acts, during Pawson's life, were vested rights, which could not be divested by Pawson's successor and subdelegate. The copper already purchased was Donnell's, and at his risk. Edwards & Stewart if they had so wished, could not have altered this state of things. But it is clear that they never proposed it; never thought of such a change.

Yet, without the power and without the intention to make any such change; declining all interference themselves, and referring all to the decision of Donnell, their acts, avowedly with a different aspect, are supposed to have changed the title which was vested in Donnell, during the life of Pawson, and vested by Pawson's own avowed intention and acts.

One of the learned counsel has talked of Donnell's specific doubloons having been invested in this purchase. What a notion is this of an ear-mark in money| Pawson held the whole of Donnell's funds, and they were in the hands of Pawson, blended with his own. Whether in doubloons or bank notes, or government paper, they became one mass in the hands of Pawson. They were placed by him [**219]  in the hands of Edwards & Stewart to make all the purchases, Donnell's and his own. Their deposite with Edwards & Stewart made them their funds. They were Donnell's no longer. They were the property of Edwards & Stewart, and they were responsible to Pawson for all the funds placed in their hands. The application of the whole mass of these funds was under the direction of Pawson, during his life; and whenever he ordered a purchase it is perfectly immaterial to this question, whether Edwards & Stewart used these donbloons, or any other portion of their own funds.

It is, respectfully, submitted to the court, that the several opinions of the court below, on this point, were perfectly correct.

Taney (attorney general) in reply.

The only question in controversy in the appeal now under consideration, is the gold and silver shipped at Guasco, and seized and confiscated by the Spanish authorities. Three of the bills of exceptions taken at the trial all relate to this subject.

The ship arrived at Coquimbo, August 15, 1820, and sailed from that place for Guasco, January 19, 1821. Pawson died at Coquimbo, December 4, 1820.

It appears, therefore, that the silver and gold [**220]  in controversy was shipped after the death of Pawson, and at a port which he did not live to reach. It does not appear that any part of the silver was purchased in his lifetime; and it is positively proved that the gold was purchased after his death.

Pawson had under his separate control his own individual adventure, and also the funds belonging to Goddard, arising from the sale of the cordage. The appellants are willing to consider the silver to have been bought with the funds under the separate control of Pawson, and the gold on account of Donnell, and propose that the loss shall be borne accordingly.

But Donnell insists that neither the silver nor the gold belonged to him; and that no part of the loss of either can fall on him. The ownership of the gold, seized by the Spanish government, is therefore the point in dispute between the parties.

The statement in the record shews that both Donnell and Pawson had funds in Chili, in the hands of Edwards & Stewart, at the time they purchased the gold. It moreover, appears, in proof that the funds of Donnell were in fact employed in this purchase, and not the funds of Pawson. But it is said on behalf of Donnell, that his funds [**221]  could not rightfully be so employed; and that if they were so used, it was a violation of the instructions given to Pawson, which instructions bound the funds in the hands of Edwards & Stewart.

We do not mean to contend that the death of Pawson altered, in any respect, the rights of the parties. We admit that the funds of Pawson in the hands of Edwards & Stewart had no greater privileges, than they had in his own hands. The first question, therefore, to be decided is, what were the powers and duties of Pawson, under the authority and instructions received by him from Donnell? And this leads us to consider, in the first place, the question presented by the second exception.

In this investigation we do not mean to consider the intentions, which Pawson is supposed to have entertained. They will be examined in a subsequent part of this argument. The object now is to ascertain the rights of the parties; and when this is done it will not be difficult to decide, how far the rights of Pawson can be affected by any designs which he formed in his life time, but which he did not live to carry into execution.

In the second exception, the County Court have decided that it was the [**222]  duty of Pawson to invest all Donnell's funds in Chili in copper, if copper could be had; that Pawson could not, consistently with his duty, put on board any copper on his own account, while he had funds of Donnell under his control, which could be applied to that purpose; that if Donnell's funds in Chili were sufficient to load the ship with copper, that no copper could be put on board for Pawson or any one else; that if copper enough was put on board, sufficient to exhaust the funds of Donnell, no other part of the cargo would belong to him; and consequently that he could not be affected by the loss or seizure of the silver or gold. This is understood to be the opinion of the court, set forth in the second exception.

This opinion of the court denies that Pawson had any license or permission from Donnell to bring copper from Chili to Baltimore, provided Donnell's funds were sufficient to load the ship. It denies also that Pawson had any privilege from Chili to Baltimore.

When we speak of the privilege of Pawson, we mean that kind of privilege which is described by the testimony. A captain's privilege in the sense, in which it is there spoken of, is not a mere permission,  [**223]  revocable at the will of the owner, but is an absolute and vested right to a certain portion of the ship, secured to him by his contract with the owner. This portion the captain may either use himself, or let out for hire to others, and the owner himself must pay for it if he uses it. Such was the character of the privilege from Canton, as appears by the testimony in the record.

It will be found, upon recurring to the exceptions and arguments in the other appeal between the same parties, that it was in that case strongly urged on behalf of Donnell, that Pawson had a certain privilege in copper from Chili to Baltimore; and that this privilege had been substituted by the consent of parties for the one from Canton. The privilege from Chili, therefore, was supposed to be one of the same character with that from Canton, for which, it was insisted on the part of Donnell, the privilege from Canton had been exchanged.

If the counsel for Donnell were right in the argument just stated, then the opinion of the County Court, given upon their prayer in the exception now under discussion, must necessarily be wrong. For if Pawson had a substituted privilege from Chili to Baltimore, he had [**224]  a right to bring home copper, or any thing else, to the extent of that privilege, although Donnell's funds were not exhausted. But in this prayer they insist that he had no such privilege; that he could use no portion of the ship for his own goods, until the whole of Donnell's funds were invested in copper, and shipped on board this vessel; that he might then use any space which happened to be left, and if none was left he could ship nothing. The position taken in the other case is inconsistent with the one they now maintain. If they were right in that case, they must be wrong in this.

It is not, however, contended on the part of Pawson's representatives, that he had any privilege (in the sense in which that word is used in the record) from Chili to Baltimore. We insist now as we did in the other appeal, that the privilege from Canton was neither forfeited nor waived; that no privilege from Coquimbo or elsewhere was, by the consent of parties, substituted in its place. But that Pawson had permission from Donnell to bring home from Chili the whole of his funds in any thing he pleased, in copper as well as in any other article. We do not say that he was entitled to do this, without [**225]  paying freight. If he used any part of the ship under this permission, he was unquestionably bound to pay freight. Because as this permission formed no part of the compensation of Pawson, there could be no reason for allowing him to exclude the goods of the ship-owner for his own benefit, without paying the usual compensation. Pawson's recompense for his services depended upon the original agreement between the parties--that is--the shipping articles, and the letter of November 8, 1819. And the permission, for which we now contend, is neither the privilege secured by that contract, nor any other privilege substituted for it; but is a separate and distinct permission given afterwards,--and given not by way of bargain--but by way of voluntary license;--and which being once executed, cannot afterwards be revoked. This is the character of the permission for which we contend. And we proceed to enquire, whether he had a permission or license of this character, or whether, as the County Court have said, he had no right to bring home any part of his own funds in copper, unless there was space left in the ship, after Donnell's funds had been exhausted in the purchase of that article.

The [**226]  argument upon this point is necessarily very brief. It depends upon the construction of Donnell's letter of December 26, 1819. This is a written instrument and must speak for itself, and its true meaning be declared by the court. It is this paper that broke up the original voyage, and directed the new one. And it prescribes what is to be done in the new one. In this letter, Donnell says,--"as relates to the investment and disposal of your own funds, you must use your own discretion, by investing it in copper or any thing else, and bringing it with you in the ship;--the copper may (as I hope it will) be bought on terms that will, with my funds and yours, load the ship very deep, but if necessary you must load her very deep," &c.

Argument can scarcely assist the court in fixing the true construction of this letter. The permission to Pawson is express to invest his funds in copper or any thing else, and bring it with him in the ship. It is not a contingent permission, depending upon Donnell's funds loading or not loading the ship. It is not a permission to bring a part of his funds in copper in the ship--nor to fill up any particular space. Donnell knew the amount of Pawson's funds--for [**227]  he had given him the bill on Horstman: (see letter from W. F. Reus,) and with this knowledge he gives to him the unqualified permission to bring home in the ship in copper, or any thing else, the whole amount of his funds.

If, therefore, this permission be an absolute privilege, substituted for the Canton privilege by the consent of parties, as has been on another occasion contended for by Donnell, then this opinion of the court, which makes it a mere contingent permission, cannot be supported. If it be an absolute and unconditional license, to be used by Pawson at his discretion, as we contend, and as the words of the letter seem necessarily to import, then it is equally clear that this opinion of the court cannot be maintained. In either view of the subject, therefore, the judgment must be reversed, unless there be something in the conduct or letters of Pawson, which may give to the case a new aspect.

We cannot imagine how any thing contained in the letters of Pawson can be relied on to support this opinion of the County Court. The court have said, that he had no right to ship any copper on his own account, provided Donnell's funds would buy copper enough to load the ship.  [**228]  We say, on the contrary, that he had permission from Donnell to bring home the whole of his funds in copper, if in his discretion he thought proper to do so. And we produce the letter of Donnell giving this permission in so many words. Now, whether Pawson had or had not this permission, must depend upon the language used by Donnell, and not upon language used by Pawson. Donnell alone could give the permission; Pawson could not assume it.

It is true that Pawson might, in his discretion, refuse to exercise the permission given. But if he had even done so in express words, it would not support the opinion contained in this exception. The point presented is--had Pawson the right, under the permission given by Donnell, to bring home his funds in copper, if he thought proper to do so. The court say he had not the right. And, in discussing this question, it can make no difference how far he exercised it, or how far he intended to exercise it. The question is, did he possess the right, if he thought proper to exercise it. He may, in his discretion, have determined not to use the permission to the full extent, nor even in a small degree. Yet that would not destroy his right to use it.  [**229]  The right would still exist, although Pawson did not choose to avail himself of it. And, in order to support this opinion of the County Court, Donnell must shew, not how Pawson used his discretion, but that he had no discretion to exercise. And, whether he had or had not the power to exercise any discretion on the subject, must depend on the letters of Donnell, who alone could confer or withhold the power.

We cannot, therefore, perceive how Pawson's letters, detailing what he had done or intended to do, can affect this question. It is not suggested that in any of his letters he has admitted that Donnell recalled the permission, given by his second letter. And, unless the letters of Pawson contained this admission, it is not easy to discover in what other way they could prove that the right, which had been vested in him by the license of Donnell, had afterwards been extinguished. Any declarations which may have been made by Pawson, as to the manner in which he intended to use the discretionary power confided to him by Donnell, would not be binding on him, nor limit the range of his power. Every intention entertained or expressed would be liable to alteration, as the business advanced,  [**230]  and at any time before he had acted. In stating this position, however, we shall not be understood to mean, that after Pawson had actually purchased copper on account of Donnell, he could convert it to his own use, and ship it on his own account. This we admit could not be done. When he had once purchased copper for Donnell, he had then exercised the discretion with which he was entrusted, and the copper would remain Donnell's, and must be shipped as his property. But we insist that he had the right, instead of purchasing for Donnell, to purchase copper for himself to the amount of his own funds, and that this power remained until he acted, and by purchasing, either for himself or Donnell, exercised the discretion, and put an end to the power. When we speak here of Pawson's funds, we must not be understood to include the proceeds of Goddard's cordage.

If, however, we look at the intentions of Pawson, as expressed in his letters, or disclosed in the letters of Edwards & Stewart, nothing will be found to sanction the opinion which the court have expressed. He uses no expression which indicates a belief on his part, that he was obliged to exhaust Donnell's funds in copper before [**231]  he could ship a single pound for himself, as the County Court have decided. On the contrary, if you resort to his own letters, or those of Edwards & Stewart, he does not appear to have doubted that he had a right to ship a large amount of copper. How much he supposed himself entitled to bring in this vessel does not appear. But it is abundantly evident that he considered it, in a great measure, as a matter resting in his discretion; and upon which he intended to decide, when he had more certainly ascertained how much could be brought. It seems never to have been supposed by him that his right to bring any was altogether contingent, and depended upon the ability of the ship to bear it, after all Donnell's funds had been first so disposed of. On the contrary, he never seems to doubt his right--he doubts only to what extend he will use it. See his letter to Donnell, dated November 4, 1820--and the letter of Edwards & Stewart, dated January 19, 1821.

It is very certain, if Pawson had lived, he would have used the permission given by Donnell very sparingly. He had the strongest inducements not to displease Donnell. He was in his employment. And Donnell was a man of vast wealth--extensively [**232]  engaged in commerce--who, we admit, paid his agents liberally while they lived, and were useful to him; and with whom, therefore, Pawson would naturally wish to stand well, and be most careful not to offend. Besides, he acted under the influence of higher and better feelings. He was the trusted agent of Donnell, and as such seems upon all occasions to have preferred the interest of his principal to his own. This was obviously the case in the purchase of gold in London; and it is equally manifest from his own letters, and the letters of Edwards & Stewart, that he was prepared again to surrender what he believed to be his rights, in order to advance the interest of Donnell:--that he had determined, in his own language, to curtail his privilege in copper;--that is--to take less than what he had a right to take, in order more effectually to serve Donnell. We admit most distinctly, that if he had lived, he would have waived his own rights in favor of his principal; and it was his intention to do so.

But we are not now to inquire what rights Pawson intended to waive, or what he intended to insist on. It is our business to ascertain what were his rights; and whatever rights he had at [**233]  the time of his death, it is the duty of his representatives to maintain, although we may even be satisfied that he himself intended to surrender them, if he had lived. If the right was not actually surrendered, it belongs to the representatives; for they can have none of those inducements to waive them, which might very properly have operated on the mind of Pawson.

We have already endeavoured to show the character and extent of these rights, and hope we have established the following propositions:

1st. That Donnell's letter of December 26, 1819, gave to Pawson permission to bring home his whole funds in copper, if he thought proper to do so.

2d. That this privilege had never been recalled by Donnell, nor surrendered by Pawson.

Assuming these two propositions, let us in the next place see what were the rights of the respective parties, when adjusted according to these principles.

Pawson had the right, under the license given by Donnell, to invest his own funds in copper in preference to Donnell's, and bring the copper home in the ship. It was also the duty of Pawson, under his instructions, to invest Donnell's funds in that article, provided the ship would [**234]  bring it, together with his own. But if the funds of both would overload the vessel, Pawson was without orders in that contingency; and consequently was left to exercise a sound discretion, as to the manner in which the surplus funds of Donnell should be invested.

In this state of things it must be conceded on all hands, that whenever Pawson bought copper for Donnell, and with Donnell's funds, the copper became his property, and could not afterwards be appropriated by Pawson to his own use, if he had been so disposed. And whenever he bought copper for his own use, and with his own funds, the copper belonged to him, and could not become Donnell's unless it was transferred to him by his own consent, as well as that of Pawson. For Pawson had a right so to invest the funds of either party; and when the investment was once made by him, he could not of himself recall it. And indeed any other rule would have been liable to great objections. Because, although copper was the favourite article, and preferred by both parties, yet as it was not all bought at once, but in different lots, the price was subject to variation, and he might have been obliged to give for some parcels more than he [**235]  had given for others; and it becomes important, therefore, to fix at once for whom the purchase was made. Besides, although copper proved the most fortunate cargo, it might have happened otherwise; and if it had come to a losing market, and the gold and silver arrived safe, the latter articles might have proved the best investment. In every view, therefore, the purposes of justice required that when the discretion was exercised, and the purchase made by the funds of one of the parties, the article purchased should become at once the property of him for whose use it was bought, and should not afterwards be transferred to the other, without the consent of both parties.

Assuming this to be the true principle, let us look at the state of the funds at the time of Pawson's death, and what was done with them afterwards. And this brings up the question in the first exception.

On the 4th of November, 1820, Pawson had bought for Donnell 9500 quintals, nearly 7000 of which was then on board at Coquimbo, and the remainder at Guasco, to which place the Chesapeake afterwards intended to sail. (See Pawson's letter.) So far we have an actual appropriation of Donnell's funds. But we have [**236]  no other appropriation during his life, and no evidence that any more copper was purchased by him. A large amount of copper was afterwards bought at Coquimbo. For it appears by the bill of lading, that instead of the "nearly 7000 quintals" at Coquimbo, mentioned in Pawson's letter of November 4, 1820, as purchased and shipped there for Donnell, there was in fact, 8076 quintals and some pounds shipped from Coquimbo. And there is no evidence to show for whom the additional 1076 quintals were bought; nor indeed any thing to show whether it was bought in Pawson's life time, or after his death. The 9500 quintals, bought for Donnell, did not exhaust his funds; it left between six and seven thousand dollars of Donnell's funds unappropriated; and there is no evidence to show that the additional quantity of copper was bought for him, or with his funds;--nor that any further specific appropriation of the funds of Donnell were made by Pawson in his life time. But whether any further specific appropriations of Donnell's funds were or were not made, it is in proof that they were not all appropriated. For it appears by the testimony, that some of Donnell's doubloons brought from England had not [**237]  been expended in the purchases made for him by Pawson; and that these specific funds of Donnell were applied after the death of Pawson, and by the advice of his successor, in the purchase of the very gold, which was afterwards seized by the Spanish government. Now, as the specific funds of Donnell were appropriated to the purchase of this gold, and it was bought on his account, the purchased gold belonged to him, and the loss must be borne by him.

We have already endeavoured to show, that if the Chesapeake would not bring all Pawson's funds in copper, and all Donnell's funds also, that as Pawson had no specific directions how to dispose of Donnell's surplus funds, he had a right to exercise a sound and honest discretion on the subject, and might invest them in any article he deemed best. He died, leaving funds of his own and funds of Donnell, also unappropriated. The money of both of them came to the hands of persons who had no instructions, from either Pawson or Donnell, and no authority from either of them. Neither Lane, nor Edwards & Stewart, in whose hands these funds remained, were appointed the agents of Donnell, or the agents of Pawson. In this state of things the money [**238]  was in their hands in the same condition, and subject to the same rights, as when it remained in the hands of Pawson. Edwards & Stewart, who held the funds, became trustees for the respective parties, according to the amount of their respective funds, and according to their respective rights of investment and shipment. And when the funds of either party were invested in a particular article, that article became the property of the party whose fund was used in the purchase. The thing purchased belonged to him, and could not be claimed by the other. And if it were lost or destroyed, he could not put that loss on the other party. If indeed the trustee had misbehaved himself in the purchase, and a loss had thereby happened, the party injured would have been entitled to demand compensation of the faithless trustee. But nobody, under such circumstances, could have acted more discreetly or honestly, than Edwards & Stewart. There is no pretence of complaint against them. But whether Donnell had, or had not cause of complaint against them would not have altered the case. The funds were in the hands of Edwards & Stewart, precisely as they had been in the hands of Pawson. The funds of Pawson [**239]  had an absolute right, derived from Donnell, to be invested in copper, and brought home in the ship. The funds of Donnell had a right to be invested in the same article, if the ship would bear it. But if the ship would not bear it, the surplus might be invested in any manner that the sound discretion of the agent would justify. These were the rights of the parties while Pawson lived, and the funds were in his hands. Upon his death, the funds in the hands of Edwards & Stewart were liable to the same appropriation, and subject to the same rights; and, by the hands of Edwards & Stewart, the surplus funds of Donnell have been specifically appropriated to the purchase of the gold. This appropriation would have been a lawful one by Pawson: it was equally so when made by Edwards & Stewart. If the shipment had proved fortunate, Donnell would have had a right to hold it, in opposition to Pawson's representatives; and as it has proved to be unfortunate, he cannot throw the loss upon them. It is unnecessary to cite many cases on this subject. Taylor vs. Plumer, 3 Maul. and Selw. 574, is in point. In page 575, it is said "the product of, or substitute for, the original thing still follows the [**240]  nature of the thing itself, as long as it can be ascertained to be such." The gold in question was "the product of, or substitute for," the doubloons of Donnell. He clearly had a right to follow the gold bought, and to claim it to the exclusion of Pawson; and it would be contrary to every notion of justice to give him the right to it, if it was found to be profitable, and enable him, if unfortunate, to throw the loss on Pawson. If he takes it all, he takes it for better or for worse. And if he has been wronged in the purchase, it was not by Pawson, for he died before the purchase. But in truth he has been wronged by nobody. The investment was judicious and discreet at the time, although it afterwards proved unfortunate. And as it was purchased with his money it belonged to him, and the court have therefore erred in the opinion contained in the first exception, as well as in that given in the second exception, which was first examined.

So far we have argued the case according to the rights of the parties, at the time the gold in question was purchased, and without reference to any thing that happened afterwards. We proceed now to show, that if Edwards & Stewart had not possessed [**241]  the power to make this investment of the funds of Donnell, yet that Donnell, by his subsequent conduct, has adopted it and assented to it, and cannot now dispute it, even if he might have done so, when first informed of the transaction.

This point arises under the second and third exceptions: It pre-supposes that Pawson in his lifetime, and Edwards & Stewart, after his death, had no right to invest any part of his funds in copper, and bring it home in the Chesapeake, until Donnell's funds had been first exhausted in the purchase of that article, and had been found to be insufficient to load the ship. But, assuming this to be the law of the contract between Donnell & Pawson, we insist that if Pawson in his lifetime, or Edwards & Stewart after his death, holding in their hands the funds of both parties, did specifically and separately appropriate them in any particular manner, and if Donnell and Pawson's representatives, after notice of such appropriations, acquiesced therein, that such acquiescence will bind the parties, and neither of them could afterwards reject and disallow it, without the consent of the other party.

We have certainly offered evidence of all the facts above [**242]  stated. 1st. It is admitted by the statement, and in prayer of the appellee that, upon the death of Pawson, a large proportion of the funds of both parties were in the hands of Edwards & Stewart.

2d. These funds were specifically appropriated. The gold in question was purchased with the money of Donnell, and shipped on his account. See where Edwards & Stewart speak of it as Donnell's gold. The Chinchilli skins, the one hundred and forty seven quintals and seventy-nine pounds of copper, and the silver mentioned in the same bill of lading, were separately shipped on account of the funds under the immediate control of Pawson. See letters of Edwards & Stewart. Also the bills of lading. When we speak here of the funds under the immediate control of Pawson, we mean his own and Goddard's, as distinguished from Donnell's. The balance of Pawson's separate account was passed to the credit of Donnell, and invested for him, and shipped on his account. The 900 pigs of copper, and the thirty-six lumps of gold were shipped on Donnell's sole account. And it is distinctly admitted in the argument, and the evidence and figures shew it, that Donnell's funds, independent of those transferred to him [**243]  by Edwards & Stewart, would not purchase the 900 pigs of copper. These 900 pigs contained 113 quintals more than Donnell's own funds would have purchased, after exhausting every dollar that Donnell had in the hands of Pawson.

3d. Donnell and Pawson's representatives had notice of these specific appropriations, and acquiesed in them.

The acquiescence of Pawson's representatives is not disputed. They claim, according to adjustment made by Edwards & Stewart, and have always so claimed. They sue on that ground. See, also, Graham's letter, May 15, 1822.

Donnell, also, had notice and acquiesced. The Chesapeake arrived at Baltimore, on her return from this long voyage, October 1, 1821. Donnell then received the letters of Edwards & Stewart, and their accounts, and the bills of lading, and invoices contained in the record, which gave him notice of every thing that had been done, as above stated. So far as to notice: Now, as to acquiescence. He received this notice, October 1, 1821. The 147 quintals, shipped on Pawson's account, as before mentioned, were delivered to his representatives as his share, October 29, 1821. All the rest, it seems, was retained as Donnell's. Some months [**244]  afterwards, and after a full investigation of all the accounts of the voyage, Donnell states an account with Pawson. We have said that this account was made out after a full investigation of the accounts of the voyage, because the paper itself upon the face of it, shows that this was the case; and we have said that it was made out some months afterwards, because the earliest evidence of its existence is to be found in Mr. Graham's letter of May 15, 1822. In this account he states the 147 quintals and 79 pounds, as the whole of Pawson's interest in the copper. See the item in the account, in which he charges him with his proportion of the expense of landing and reshipping the copper. Donnell had, at that moment, in his hands 113 quintals more than his own funds could have purchased. Yet he gives no account of this, and speaks of the 147 quintals and 79 pounds as the whole of Pawson's interest. If Donnell acquiesced in the transfer to him of $ 7777 87 by Edwards & Stewart, then he was not bound to speak of this 113 quintals, because he would be debtor for the $ 7777 87, transferred to him, and he would be entitled to all the cargo purchased with it, and, consequently, to the 113 quintals [**245]  above mentioned. If he does so acquiesce, then he adopts, also, the shipment of the gold, and, of course, gives up the matter in controversy. The gold was shipped on his sole account. And if he adopts and ratifies the acts of Edwards & Stewart, as to the 113 quintals of copper bought with part of the sum transferred to him, it will hardly be said that he may reject the gold, because it was unprofitable or lost. In fine, he may in this aspect of the case accept the transfer of the $ 7777 87, or reject it altogether. He cannot accept it in part, and reject it in part. He has accepted it as relates to the 113 quintals. If he has acquiesced as to that, he must acquiesce as to the gold also.

It can hardly be supposed that Donnell did not acquiesce as to these 113 quintals. They were bought with part of the sum of $ 7777 87, transferred to him as aforesaid. He had no other funds to buy it. If he did not mean to assent, then these 113 quintals belonged to Pawson's administrators. Yet Donnell, after a full view of the whole ground, accounts with them, without allowing them these 113 quintals. And after taking all the copper to himself, and these 113 quintals with the rest, he makes himself [**246]  debtor for $ 185 09 only. Whereas, if this copper belonged to Pawson's administrators, it was of itself worth in Baltimore more than $ 2000. Donnell, therefore, stands in this dilemma. If he did not mean to ratify what was done by Edwards & Stewart, then he was bound to deliver over this copper to Pawson's representatives, for which he himself had not paid, and had no funds to pay. If he did mean to ratify what was done by Edwards & Stewart, he had a right to retain it. In the first case, he could not rightfully withhold it. In the second, he might honestly do so. He did retain it, honestly and justly we say, because the funds were transferred to him, and it was shipped on his account. It will not, be said on his behalf, that he withheld it from the account from any unworthy motive. He must therefore have acquiesced in the arrangements made by Edwards & Stewart. His conduct in regard to these 113 quintals of copper can be justified on no other ground.

We do not ask the court to say that this conduct was, in point of law, an acquiescence or consent on the part of Donnell, and irrevocably bound him. But we insist that it was evidence of his acquiescence and consent, after notice [**247]  of the manner in which the funds had been appropriated; and being evidence of such acquiescence and consent, it ought to have been left to the jury to say from the evidence, whether he did, or did not acquiesce in the disposition of the funds made by Edwards & Stewart. If he did assent, it is quite clear that in point of law he cannot afterwards recall it. The case of Prince vs. Clark, 8 Serg. & Lowb. 54, is directly in point on this subject. In that case the agent applied the funds of the principal in a manner not authorised:--in this case, it is assumed for the sake of the argument, that the same thing was done. In that case the principal received notice of the manner in which his funds had been applied, May 29, 1822; and gave notice of his dissent, August 7, 1822; that is, in less than two and a half months afterwards. In this case Donnell must have received notice of the application of his funds, when the ship arrived, October 1, 1821; and he expresses no disapprobation of the transfer of Pawson's funds to his account, until he rendered his account. And there is no evidence of the time of rendering that account, but the letter of Mr. Graham; which letter is dated May 15, 1822, seven [**248]  months and a half after the arrival of the ship. If in the case of Prince vs. Clark, the silence of the principal, or rather the absence of any evidence of dissent by him for the space of two and a half months, was evidence, from which the jury might properly find that he had acquiesced and assented to the act of the agent;--surely the silence of Donnell, for the far longer period above stated, was evidence, from which a jury might have inferred his assent and acquiescence in the acts of Edwards & Stewart, in the transfer of Pawson's funds to him, and in the shipment of the copper and gold, on his "sole account," as stated in the letters and bill of lading. Indeed this case has this strong additional circumstance against the principal, that the legal representatives of Pawson were known to him, were living in the same town with him, and to whom he had delivered the property, shipped on account of Pawson, October 29, 1821. And in the case of Prince vs. Clark, it was not very clear that Leigh was the proper person to receive the notice; and if he was the proper person, it was not very clear that Prince knew it. We confidently, therefore, rely upon this case to prove that the court erred [**249]  in the opinion contained in the third exception, in which they decide that the evidence above stated, is not a ratification of the acts of Edwards & Stewart. Whether Donnell did, or did not consent to them was a question of fact for the jury, and not of law, for the court. And if he did acquiesce in them after notice, and the jury had so found, then in point of law it ratified what Edwards & Stewart had done.

So far we have considered the case as if Donnell in his account had dissented from the appropriation of the funds made by Edwards & Stewart. But is this the meaning of the account in question? Does he in this account dissent from what had been done? It is very true that he says, in noticing this item, that the transfer of $ 7,777 87, was very improperly made to him. But he does not reject it. He does not refuse to accept it. On the contrary, he credits Pawson with the whole amount, rejects from it Goddard's funds, and then reduces the balance by charging freight, the cost of the gold, &c. &c. and, finally, leaves a balance against himself, on account of this transfer of $ 112 49; and this sum of $ 112 49 is a part of the balance of $ 185 09, which Donnell admits to be due [**250]  from him to Pawson's representatives. Is not this a direct acquiescence in the transfer? Is it not a positive adoption of it? True, he complains of it, and denies the right of Edwards & Stewart to make it. Yet he accepts it; accounts, as he supposes, for all but $ 112 49; and admits that he owes that sum on account of this transfer. If he did not accept it, he owed nothing on that account. He does, therefore, in admitting this balance to be due, also admit, by necessary implication, that he assented to the transfer.

The account is in writing; and whether Donnell does, or does not by this account accept the transfer above mentioned, must depend upon the language of the account which is to be taken all together; and being in writing, is to be expounded by the court. We have endeavoured to shew the court, that by the true construction of the account, he has assented to and accepted the transfer. If we are right in this, then the court ought to have instructed the jury that, "under the circumstances of the case," the account of Donnell was a ratification of the acts of Edwards & Stewart. For, if by the written language of the account, according to its true interpretation, Donnell [**251]  had accepted the transfer, his assent was in point of law a ratification; and the other evidence need not have been left to the jury. If, however, we are wrong in our interpretation of this account, yet all must concede to us that the circumstances, herein before detailed and relied on, furnish evidence from which a jury might have inferred his consent, and that therefore the opinion of the court cannot be maintained.

It has been said that this copper was retained by Donnell, in order to meet any claim that Goddard might make against him. Now the motive which induced him to retain was necessarily a question of fact for the jury, and not one of law for the court. Donnell contends that he retained it to meet any demand that Goddard might make: we insist that he retained it as his own property, shipped to him and on his own account by Edwards & Stewart. In this state of the dispute the jury must decide the controversy. The court cannot decide what motive or intention influenced Donnell. It is a question of fact. The argument, therefore, on the motives which governed Donnell, does not tend to support the opinion given by the court. As the motive was controverted, it was not in the [**252]  province of the court to decide the controversy. It may not, however, be improper to remark here, that Donnell does not, in his account, suggest that he retained this copper for the reasons now assigned in the argument. He gives no account of it whatever, and Pawson's representatives did not know any thing about it. It is quite evident that Goddard could have no claim against Donnell, or against the copper brought in the Chespeake. He never pretended to have a claim against either; and we shall be ready, at the proper time, to shew that he has no just demand against Pawson's representatives. With that controversy, however, we have nothing to do at this time. It is sufficient for us, on this occasion, to show that it cannot be taken as an admitted fact, that Donnell retained this copper for Goddard. The opinion of the court, therefore, in the third exception, cannot be sustained on that ground.

There is another objection to the opinion contained in the third exception, which we must briefly notice. We understand the first branch of the direction to be this:--that if Pawson, in his lifetime, was willing to waive the privilege he had to bring home his whole funds in copper, but died [**253]  before he had actually invested the funds in his hands, and before he had actually waived it, that his declared intention, his willingness to curtail his rights would bind his representatives, and compel them to relinquish what Pawson had been willing to relinquish, and had intended to relinquish, but which intention he had not, in his lifetime, carried into execution. This, we presume, must be admitted to be the meaning of the first branch of this direction.

Upon what principle can it be sustained? Is there any case in which the intention to do an act has been held to bind the party, or his representatives? It is not pretended that he did, by any act of his own, surrender a part of his privilege; nor is it supposed that he contracted to surrender it, or any part of it. The direction stands on the hypothesis, that he was willing to accept less than he was entitled to. His willingness to do an act cannot be equivalent to the act itself. We are not to inquire what either party was willing to do, but what they had done; and what were their rights at the time of Pawson's death; for it is according to these rights that the cause must now be decided. It is time, however, that this argument [**254]  should be brought to a conclusion.

We have endeavoured to show,--1st, that Pawson had the permission of Donnell to bring home in copper the whole of his own funds, if in his discretion he thought proper to do so. And that this permission had never been recalled by Donnell, nor surrendered by Pawson. 2d. That upon the death of Pawson the funds remaining unexhausted came to the hands of Edwards & Stewart, clothed with the same rights and privileges that belonged to them, in the hands of Pawson. 3d. That being so in their hands, Edwards & Stewart were not bound to exhaust Donnell's funds in copper, before they invested any part of Pawson's funds in that article; but, on the contrary, had a right to invest if they thought proper to do so, the whole of Pawson's funds in that article, and send it in the ship. 4thly. That Edwards & Stewart, holding thus the funds of both parties in their hands, and Pawson's funds having a right to be preferred in the investment in copper; if Edwards & Stewart in the exercise of an honest discretion, actually invested any part of Donnell's funds in gold, that the gold became the property of Donnell; and, if a profitable investment, he was entitled to [**255]  claim it; and if it proved to be a losing one, he could not throw the loss on Pawson's representatives. 5thly. We have endeavoured to show that whatever might have been the rights of the parties, there is evidence to prove that all of them, after notice, acquiesced in what was done by Edwards & Stewart; and if from that evidence the jury should find such acquiescence, Donnell, as well as Pawson's representatives, are bound by it, and cannot recall it, no matter what might have been their rights before. And 6thly, we have endeavoured to show that by his account, Donnell has given a written assent to the appropriations of the funds made by Edwards & Stewart; and that although he denies the propriety of the transfer to him, yet he adopts it, and states the account upon the principle, that he is to account for the money so transferred, and does not deliver or offer to deliver the property in which it was invested, but retained it as if it were his own. And, relying upon the soundness of these propositions, the case is submitted to the Court.  

JUDGES:
The cause on both appeals was argued before BUCHANAN, Ch. J., and STEPHEN and DORSEY, J.  

OPINIONBY:
DORSEY 

OPINION:

 [*143]  DORSEY J. at this term delivered [**256]  the opinion of the Court.
Of the refusal of the Court to grant the instruction prayed for, which forms the ground of appeal on the appellant's first bill of exceptions, we entirely approve. Had the instruction been given, it would have been a palpable invasion of the unquestionable and exclusive right of the jury: that of deciding on facts, of which contradictory testimony is adduced. The appellees "had offered in evidence, that it was the usage among ship owners and masters, not to charge freight where the ship was in ballast, for any articles shipped by the captain on his own account." The appellant then "offered in evidence that 

 [*144]  there was no usage as above stated, and that the captain was liable to freight to the owner, like any other person, if he chose to exact it." In such a state of the proof, the court could not do otherwise than reject the prayer, calling on them to decide a fact thus controverted.
In the appellant's second bill of exceptions are involved questions of great magnitude to the commercial world and of much intrinsic difficulty; and we regret that we are called to the decision of these questions, without proof of commercial usages upon the subject.  [**257]  In the argument it is conceded by both parties, that the owner of the ship and cargo has the uncontrolled power of breaking up or changing the voyage, but they differ most widely as to the consequences which would ensue, and the nature of the responsibilities, to which the owner would thereby be subjected. For the appellant it was contended that this well established prerogative of the ship owner, entered into the contemplation of Donnell and Pawson, who contracted in reference to it. That upon its exercise no new liabilities were created; the Canton privilege no longer formed any part of the contract; nor had Pawson any claim to indemnity for its loss. This is assuming much broader ground than was occupied by the prayer to the court below: which appears predicated on the admission of Pawson's title to recover, but for his alleged voluntary relinquishment of his right. The appellees, on the other hand, insist, that upon the change of the voyage, Pawson was not only entitled to claim an indemnification for the injuries thereby sustained: but the full value of the Canton privilege, exempt from all the casualties to which it was naturally liable: and also the [**258]  whole compensation, stipulated as an allowance to the supercargo, whether the services for which it was equivalent were ever rendered or not; all which on the part of the appellants, is strongly controverted. The principles, contended for by each party, are perhaps stretched further than reason or justice would sanction or public policy requires. And it may readily be imagined, how the counsel on both sides, if yielding to the impulse of their clients interest, would have changed hands in the argument, had a new modification been given to the facts, in the case, 

 [*145]  which whilst it varied its aspect, would not in the slightest degree have removed it from the operation of the principles now attempted to be applied to it. Suppose, for example, the voyage contracted for had been from Baltimore to London, and thence home with a cargo of dry goods, the stipulated compensation of Captain Pawson, in addition to his monthly wages, being three hundred dollars; but no privilege. After the sailing of the vessel, owing to a sudden depression in the price of dry goods, Donnell changes the voyage: directs that eight thousand doubloons be taken on board at London: be transported [**259]  to Coquimbo: there converted into a full cargo of copper: which was to be sold at Canton, and the proceeds of sale there invested by Pawson in a suitable invoice were to be brought home by him, in the Chesapeake to Baltimore: under such circumstances would Pawson's counsel, as they now do, insist on the compensation fixed in the original contract, when the emolument incident to the substituted voyage, by universal usage of trade, were twenty times as great as those which belonged to the original? Impelled by the interests of their client, they surely would require, the accustomed reward for the services rendered. Whilst the counsel for the appellant, if influenced exclusively by his interests, would insist on his discharge, upon payment of the sum specified in the agreement.--But suppose another case slightly variant in circumstances, but the same in principle--A ship-owner in Baltimore, for a fixed compensation (say $ 300) employs a captain to navigate his vessel to the Havana: there to sell his outward and purchase a return cargo. Before she reaches the mouth of the Chesapeake, her destination is changed; she is ordered on a trading voyage that [**260]  may last for years; she is to double Cape Horn and return by the Cape of Good Hope; would it be attempted to limit the reward for the captain's services to the sum mentioned in the original agreement? But to present the question on facts more immediately before us, suppose the Chesapeake on her originally destined voyage, before she had passed the waters of Maryland, had been ordered to Norfolk, there to sell her cargo and return to Baltimore; could it be pretended that Pawson would in such circumstances have been entitled 

 [*146]  to the two thousand dollars, and the undiminished value of the Canton privilege|
If the rule contended for either by the appellants or the appellees be a good one, it must work both ways, as well to cases where the length of the voyage is increased, as where it is diminished. In its operation it would always work injustice to one party or the other; and in the latter case, it would, in effect, annihilate that acknowledged and invaluable right in ship owners, of controlling the destination of their property; as its enjoyment would be visited by penalties more than equivalent to the losses apprehended from the original,  [**261]  or benefits anticipated from the substituted voyage. Reason, justice and public policy, are never to be lost sight of in the construction of commercial contracts; in unison with which, it would be difficult to reduce the rules insisted on by the parties to this controversy. The principles which should govern cases like the present, according to our views, (in the absence of all commercial usage on the subject,) are these. If by the exercise of this important privilege, a special injury is done to the captain or supercargo, the ship owner must bear the loss; he must make a reasonable indemnity. If on the contrary, by the change of voyage the captain or supercargo be necessarily discharged from the performance of all the duties, for which a remuneration has been stipulated, his claim to such remuneration is thereby extinguished. If a part of the duties have been executed, then such a proportion of the stipulated compensation should be allowed, as appears just, on comparing the services rendered, under the voyage originally contemplated, with those which remain unperformed. For the interpolated part of the voyage the usual compensation must be paid. The parties should be placed, as nearly [**262]  as may be, in the same condition in which they would have stood, had a previous contract, for the voyage as changed, been entered into between them. To all the customary emoluments of a captain or supercargo, on such a voyage, are those officers respectively entitled.
The County Court, we therefore think erred, in the appellant's second bill of exceptions, in refusing to instruct the Jury as 

 [*147]  prayed, that "the plaintiff (below) is not entitled to any compensation, for the alleged loss of the privilege of bringing home the twenty-five tons from Canton;" that being a privilege, so inseparably connected with the vessel's destination to Canton; that upon its ceasing, as it did, to be one of the termini of the voyage, the privilege of necessity expired with it.
With the opinion of the court below in the third bill of exceptions we concur. The alleged misconduct of the captain, having produced neither injury nor inconvenience to the appellant, forms no defence to the present action.
According to the views before expressed by us, the County Court were in error in their refusal to grant the prayer in the appellant's fourth bill of exceptions; and also in the opinion [**263]  and direction they thereon gave to the jury, and in conformity with the same views, we approve of their refusal of the opinion and direction prayed for in the appellant's fifth bill of exceptions.
The decision made by this court on the second bill of exceptions, renders it unnecessary for them to examine the opinion of the County Court in the appellant's sixth bill of exceptions: as by that decision the appellant's prayer becomes wholly immaterial and irrelevant to the issues in the cause; and let the determination of the County Court be what it might, it would furnish no ground for reversing their judgment. The same may be said in relation to the appellant's ninth bill of exceptions.
Of the refusal of the Court below to grant the prayer in the appellant's seventh bill of exceptions we in part approve and in part disapprove. They were wrong in refusing to instruct the jury that the plaintiffs below were not entitled to recover the said sum of two thousand dollars: but were right in refusing to instruct the jury that they were not entitled to recover "any part thereof."
We concur with the County Court in their refusal to grant the appellant's prayer contained in his eighth bill [**264]  of exceptions.
There being cross appeals in this case, it now becomes necessary to consider the exceptions on the part of the appellees. It has been attempted to sustain the opinion of the County Court in the appellee's first bill of exceptions, on the ground that 

 [*148]  Edwards & Stewart were the agents not of Donnell, but of Pawson, and, that he only must be answerable for their acts. With this doctrine to the extent to which it is urged we cannot concur. It is in proof, that it was the known and necessary custom of trade at Chili and at Coquimbo in the business in which Pawson was engaged, to employ agents on shore, such as Edwards & Stewart. That the selection of such agents in this case, was not made bona fide, and with discretion, there is no insinuation. The consequences of the neglect, omissions, or misconduct of Edwards & Stewart, in their agency, not imputable to Pawson, must be borne by Donnell; in fact they are his agents, though appointed by, and under the immediate control of Pawson. For their acts therefore, after Pawson's death, not flowing from any instructions previously given by him, in relation to Donnell's [**265]  funds, they only, and to him alone, are answerable. This doctrine is fully sustained by the opinion of this court in the case of Jackson vs. The Union Bank of Maryland, 6 H. & J. 146, and by the late decision of Judge Hallowell before a special jury in the district court of the city and county of Philadelphia. In refusing, therefore, to give the instruction prayed for, we think the County Court erred.
The prayer in the appellee's second bill of exceptions being in the alternative, the court below were right in instructing the jury, that if Pawson in his lifetime made the investment in gold, that he must bear the loss; but in the instruction given on the latter branch of the alternative, we conceive the court were wrong, upon the grounds assumed by us in the consideration of the appellee's first bill of exceptions. It being a question, under all the proofs and circumstances of the case, fairly open for discussion before the jury; whether the purchase of the gold was made under any instruction or authority from captain Pawson. By their decision, they have determined that matter of fact in the affirmative, and consequently overleaped one of the barriers [**266]  interposed between the court and the jury.
The first branch of the third exception of the appellee's, is inaccurately drawn; and if construed according to its obvious import, might have been rejected by the court for irrelevancy 

 [*149]  to the matters in issue before them. It prays an instruction to the jury "that the plaintiff (below) is not entitled to recover of the defendant, the amount of any gold or silver, which the said Pawson, or his agents, the said Edwards & Stewart, may have put on board the Chesapeake, of their own accord, and without the knowledge, consent or orders of the defendant (below) and which may have been afterwards seized by the government of Chili, and confiscated as having been attempted to be exported contrary to the laws of the land." The plaintiff did not claim to recover the amount of any gold or silver; on the contrary, the gist of the controversy was his disclaimer of all interest in the gold or the funds with which it was purchased. The prayer was therefore inapplicable to the issue. But give to the exception that construction which has been ascribed to it in the argument; that it presents the question whether the amount of this [**267]  gold, could by the jury be discounted from any claim which Pawson might have upon Donnell, and the prayer is too wide to be gratified in extenso. If the investment in gold was made by Pawson in his lifetime, or in obedience to his directions, then the discount contended for should have been sanctioned by the court; but if the investment were the act of Edwards & Stewart without orders from Pawson, then the loss of the gold shipped must fall upon Donnell. The instruction of the County Court embraces both alternatives, and is therefore erroneous. In their opinion, on the latter part of this exception, regarding the ratification by Donnell, of the purchase and shipment of the gold, we concur with the County Court.
Having assented to the decisions of the court below, contained in the appellant's first, third, fifth and eighth bills of exceptions; but dissented from those in the appellant's second, fourth and seventh bills of exceptions; and having dissented from their opinions in the appellees three bills of exceptions:

Their JUDGMENT IS REVERSED AND A PROCEDENDO AWARDED.  

34 of 44 DOCUMENTS 

WINCHESTER, Trustee of GOODING, vs. THE UNION BANK OF MARYLAND.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

2 G. & J. 79; 1829 Md. LEXIS 9 

December, 1829, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore County Court.

This was an action of assumpsit, instituted by the appellant on the 15th day of September, 1823, against the appellees, the President and Directors of the Union Bank of Maryland. The pleadings and evidence were the same as in the preceding case of Winchester, trustee of Williams, vs. the Union Bank, with this difference, that after the commencement of the suit, and before trial, that is to say on the 28th of April, 1825, the appellant, as permanent trustee of John Gooding, filed a bond, with approved security. The defendants made the same prayers, and obtained the same instruction from the Court as in the previous case, and the verdict and judgment being in their favor, the plaintiff appealed to the Court of Appeals.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

The trustee of an insolvent debtor derives his right from his appointment, and the insolvent laws requiring that he shall give bond with security, for the faithful performance of his duty, before he acts as such, until such bond is given, he is not invested with the functions of trustee, and can neither sue for, nor in any manner intermeddle with the property of the insolvent.

So one appointed such trustee, having given bond after he brought suit, cannot maintain it.  

COUNSEL:
R. Johnson, and Raymond, for the appellants.

In addition to the points made in the other case, they contended, that the trustee having given bond, with security, approved by the Court, after the commencement of the suit, but before trial, the bond relates to the original appointment of the trustee, and renders the proceedings valid ab initio. They further contended, that the plea of non assumpsit,  [**2]  admitted the trustee to have been legally appointed and qualified. On the 1st additional point, they cited the Act of 1805, ch. 110, s. 4. 1808, ch. 71, s. 3. 3 Bac. Abr. tit. ex'r. &c. 52. 5 Jacobs' L. D. tit. relation. On the 2nd. they referred to Henderson vs. Parker, 3 Harris and Johnson, 117.

Taney, (Attorney General) and Kennedy for the appellees, referred to the Act of 1805, ch. 110. 1808, ch. 71, and 1812, ch. 77. 2 Stark. Evid. 109. 3 Bac. Abr. 53.  

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

OPINIONBY:
BUCHANAN 

OPINION:

 [*80]  BUCHANAN, Ch. J. delivered the opinion of the Court.
This case is, in all respects, the same as that of Winchester, trustee of Williams, against the Union Bank, just decided, with this difference only; that here a bond, with security, appears to have been given by the trustee, but subsequent to the bringing of the suit, though before the trial. And it is contended, in addition to the several points raised and decided in that case, that the bond thus given, has such relation back, as to entitle the plaintiff to recover.
But this is not like the case of an executor, who derives all his interest from [**3]  the will; and though probate is necessary to the authentication of his right, yet it is the will alone which gives it, and the probate is only the legitimate evidence of his title. He may, therefore, sue, but cannot declare before probate, for he cannot assert his right in Court, as an executor, without producing his letters testamentary. It may, more properly, be assimilated to the case of an assignee of a bankrupt, who derives his title from the assignment, which divests the bankrupt of his personal property, and vests it in the assignee from the time of the bankruptcy; or in this particular, to the case of an administrator, who derives his title from his letters of administration, and cannot sue, or do any other act, before letters of administration granted, though when administration is granted, it vests the property in the administrator by relation, from the time of the death of the intestate.
So a trustee of an insolvent debtor derives his right from 

 [*81]  his appointment; and the insolvent laws requiring that he shall give bond, with security, for the faithful performance of his duty, before he acts as such; until such a bond is given, he is not invested with the [**4]  functions of trustee, and can neither sue for, nor in any other manner intermeddle with the property of the insolvent. He is not, in contemplation of law, a trustee; his character as such is not completed, until the bond required, is given. The mere appointment, unaccompanied by his giving a bond, with security, confers upon him no power over the goods of the insolvent. but it is the bond, as constituting an ingredient in the appointment, and is the perfection of it, that gives him authority to act, and assert his rights in the character of trustee.
The bond, therefore, in this case, having been given after the suit was brought, the suit was instituted when the plaintiff was not clothed with any power to sue, or in any manner to interfere with the property of the insolvent, in the capacity of trustee, and cannot be maintained.
JUDGMENT AFFIRMED.  

35 of 44 DOCUMENTS 

BRUNDIGE, et al. vs. POOR, et ux.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

2 G. & J. 1; 1829 Md. LEXIS 1 

December, 1829, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from a decree of the Court of Chancery. The bill, which was filed on the 11th of December, 1821, stated that Dudley Poor, and Deborah, his wife, of the city of Baltimore, being indebted to the complainants, James Brundige, Thomas Vose, and William Worthington, in a large sum of money; for the purpose of securing the same, on the 12th day of June, 1819, conveyed to them, by way of mortgage, a lot of ground in the said city, with the buildings, &c. thereon, with a clause of redemption, in case the money thereby intended to be secured, should be paid on the 4th day of October, then next following. That Dudley Poor hath become insolvent, that a certain Matthew McLaughlin is his permanent trustee, and that no part of the mortgage debt hath been paid. Prayer, that the defendants may be decreed to pay complainants debt, with costs, or in default thereof, that the mortgaged premises may be sold, and for general relief.

The answer of McLaughlin admitted that he had been appointed permanent trustee for the benefit of the creditors of Poor, and that he had paid no part of complainants debt, principal or interest.

The answers of Poor and wife admit the execution of the mortgage,  [**2]  as charged and exhibited with the bill; but "by way of plea and answer," they set forth the following facts, as grounds of defence. "They say, that the defendant Deborah, as one of the heirs and devisees of John O'Donnell, deceased, was entitled to a large real and personal estate, which, by an order of the Chancery Court, was allotted to her, as will appear by referring to the proceedings on record, which they ask to have taken as a part of their answer. That after the said allotment, the defendants, by a deed, duly executed, &c., and dated on the 4th of August, 1816, conveyed to a certain Columbus O'Donnell and John H. Poor, all their estate and interest in the share aforesaid, in trust, for the sole and separate use, benefit and behoof of the said Deborah, for life, so that she be suffered to take and receive the entire profits thereof to her own separate use, without being subject to the control of the said Dudley Poor, or of any future husband of the said Deborah, and in nowise answerable for the payment of his or their debts or engagements; and subject to be sold and conveyed by the said Deborah absolutely, in such manner as she may think proper, without the concurrence of her [**3]  present, or any future husband; and after the death of the said Deborah, then as to the whole of said property, or such parts thereof as may then be undisposed of, by her deed or contract, in trust for her children as tenants in common; and in case she should die without children, for the use of such person or persons as she, by a writing in the nature of a will, may appoint, and in default of such appointment, to the right heirs of the said Deborah. And they further say, that the real estate mentioned in the mortgage, is included in the said trust deed--and by way of plea, and in bar of the complainants right to recover, they say they are advised they had no legal right to make said deed, and that no legal interest was thereby conveyed to the complainants, the legal title being outstanding in the said trustees, Columbus O'Donnell and John H. Poor; and moreover, that the said deed of mortgage is defectively executed, and even if a legal or equitable title existed in these defendants, that the said deed exhibited by the complainants, with their bill, is wholly defective in its execution, and agreeably to the laws of Maryland conveys no legal or equitable title to the complainants,"  [**4]  &c.

Leave was afterwards prayed for, and granted, to amend the bill, by making the said trustees, Columbus O'Donnell and John H. Poor, defendants, against whom, together with the other defendants, the same relief was prayed as by the original bill.

The answers of the defendants to the amended bill, admitted the execution of the deed of trust, &c.

The original mortgage to the complainants was filed as an exhibit with the bill. The clause of redemption is, "that if the said Dudley Poor and Deborah Poor, his wife, their heirs, &c. shall pay to the said James Brundige, &c. the sum of $ 2059 75, on or before, &c., then this indenture shall cease," &c. It was acknowledged by the grantors on the day of its date, before two justices of the peace, without a privy examination of the wife being certified on the mortgage.

The general replication to the answers was entered by the complainants.

A commission issued by consent to take testimony, but the proof returned does not appear to be material.

The complainants again, on the 14th of October, 1825, amended their bill, charging that the amount intended to be secured by the mortgage from Poor and wife to them, is a [**5]  specific lien on the property therein mentioned, by reason of the said mortgage deed so executed as aforesaid, and praying that the same may be sold for the purpose of discharging the said lien.

The answer of Poor and wife to this amended bill, admits the mortgage; but they state, by way of plea and answer thereto, all the grounds of defence set forth in their answer to the original bill; and they further say, that previous to the year 1819, the said Dudley Poor, as the security of a certain Moses Poor and Jonas Hastings, became indebted to the complainants, as the agents of one John Tappan, in the amount mentioned in the mortgage, and that the same was executed by them in consideration of the said complainants (on behalf of the said Tappan's) agreement to extend the time of payment of the money due them, as aforesaid, from the said Dudley. And they aver, that the said debt was the debt of the said Dudley Poor, and that the said Deborah did not derive any benefit, or receive any consideration therefor. And they alleged in bar of the complainants bill, that they had no legal right to make said deed of mortgage; and if they had, that the same is defectively executed, &c.

On [**6]  the 13th day of November, 1826, after the coming in of the preceding answer, the complainants again, with leave, amended their bill, so as to make John Tappan a party complainant. In this bill, Tappan is stated to be the actual creditor, and re-asserting the existence of a specific lien on the property contained in the mortgage for the aforesaid debt, they pray for a sale of it, and for general relief. And at the same time the following agreement, signed by the solicitors of the parties, was filed: "The undersigned, solicitors for the parties in the above cause, do hereby agree, that John Tappan shall be deemed and taken as a party complainant, in the original and amended bills of complaint filed in this cause, in the same manner, to all intents and purposes, as if the said John Tappan had been inserted as a complainant in the same, at the time the said bills were filed and exhibited in this Court. It is further agreed, that the depositions, proofs, and proceedings heretofore had, shall be read in evidence in this cause in the same manner as if the same had been taken after the filing of the answers in the said cause, and issue had been joined thereon. It is further agreed, that the [**7]  said complainants shall have leave to file their amended bill, making the said John Tappan party complainant, and that the answers heretofore filed, shall be taken as answers to the said amended bill, and the depositions, proofs and proceedings heretofore had, shall be read in evidence in this cause, in the same manner as if the same had been taken, filed, and entered, after the filing of the said amended bill, and issue joined thereon."

BLAND, Chancellor, (September, 1826.)

The original bill, filed on the 11th of December, 1821, alleges that Dudley Poor and his wife, on the 12th of June, 1819, mortgaged certain property to the plaintiffs, to secure to them the payment of the sum of $ 2057 57, on the 4th of October then next. And it also alleges, that Dudley Poor applied for and obtained the benefit of the insolvent laws, and that Matthew McLaughlin was appointed his trustee. On the 9th of December, 1823, the plaintiffs having obtained leave, amended their bill, by which amended bill they allege that Dudley Poor and wife have conveyed the mortgaged property to Columbus O'Donnell, and John H. Poor, in trust for the use and benefit of Dudley Poor's wife, of the nature of which [**8]  they were ignorant; and therefore pray that those trustees may be made defendants, and that they may be ordered to produce the deed of trust.

These complainants, still not being entirely satisfied with their bill, obtained leave, and again amended it on the 14th of October, 1825. By this amendment they allege, that they are entitled to be paid out of the sale of the mortgaged property, on which they have a specific lien, by reason of the mortgage deed; and, in the opinion of the plaintiffs, their bill still requiring amendment, on the 13th of November, 1826, they obtained leave, and so amended it as to make John Tappan a plaintiff, who, as is alleged by this amendment, is, in truth, the real creditor, and that Brundige, Vose, and Worthington, in whose names the mortgage had been taken, were merely his agents.

The plaintiffs pray for a sale of the mortgaged property to pay the debt, and for general relief.

To the original bill, on the 13th of March, 1822, McLaughlin, the trustee, under the insolvent laws, of Dudley Poor, answered and admitted all its allegations. On the 16th of December, 1822, Dudley Poor and wife, jointly pleaded in bar, that the mortgaged property had [**9]  been previously conveyed to Columbus O'Donnell, and John H. Poor, in trust for the uses specified in the deed of trust, and therefore that the mortgage relied on by the plaintiffs, was insufficient and void. On the 3d of August, 1824, O'Donnell and John H. Poor, by their joint answer, admit the execution of the deed of trust, and produce it as required by the first amended bill. After the amendments of the bill of the 9th of December, 1823, and of the 4th of October, 1825, Dudley Poor and wife again jointly pleaded, that they had, by a deed bearing date on the 4th of August, 1826, conveyed certain property therein described, including that in the proceedings mentioned to Columbus O'Donnell, and John H. Poor, in trust for the separate use of Dudley's wife, and for the uses mentioned in that deed; and then aver, and plead, that the mortgage deed for a part of the property which had been so conveyed in trust, is defectively executed, and that they had no legal right or power at that time to make such a contract, for that property. After which it was agreed that these answers, should stand as answers to the third amendment of the 13th of November, 1826. The general replication has been [**10]  filed, issue joined, and the case standing ready for hearing, has been fully argued. The deed of trust of the 4th of August, 1816, was produced, commented upon, and its execution and verity on all hands entirely admitted. I have thus particularly stated the circumstances of this case, because the statement itself leads us directly to those well established principles upon which it may be at once disposed of, without the least difficulty, and without being carried away into that group of decisions in relation to the execution of a power reserved to a feme covert, that have tasked the diligence, and exercised the ingenuity of so many distinguished lawyers; since there is no allegation in these pleadings, by which the court can be called upon to treat the mortgage, upon which the plaintiffs sue, as an execution of the powers with which the wife of Dudley Poor has been clothed by the deed of trust. The case is simply this: the plaintiffs say, that to secure a debt due them, they obtained a mortgage of certain property from Dudley Poor and wife, which property they pray may be sold to pay that debt. To this Dudley Poor and wife plead in bar, that they had no legal right or power to make [**11]  such a mortgage, for the reasons set forth. To this the plaintiffs have replied, generally, and issue has been joined, and the case set down for hearing. Where the defendant files a plea in bar, if the plaintiff conceives it to be defective in form and substance, and is anxious to have that matter determined, he may set the plea down for hearing, and take the judgment of the court upon it. But if the plaintiff allows the plea to be correct, or it is so determined to be by the court, he may then reply and join issue upon the truth of the facts therein set forth; and if, upon the hearing, the defendant establishes the truth of the facts thus put in issue, the suit is at an end, so far as the plea extends. It is too late, after issue joined, to inquire into the formality of the plea, or whether it be in any respect defective in form: or whether any, and how far an answer might be necessary to its support, because the plaintiff, by replying to it, has thereby tacitly waived all objections of that sort, and admitted it to be a good bar in equity, if the facts be true. And it is the constant course of the court where issue has been joined on the plea, and its truth is proved or admitted,  [**12]  to dismiss the bill with costs, if the plea goes to the whole. In this case, the plea of Dudley Poor and wife covers the whole and entire substance and merits of the plaintiff's case, and having been admitted by the replication to be good in point of equity, and the truth of the facts therein set forth having been established, there is an end of the plaintiff's case.

DECREED, that the complainants bill of complaint be dismissed, with costs.

From which decree the complainants appealed to this court.  

DISPOSITION:
DECREE REVERSED.  

HEADNOTES:

A feme covert, in consideration of a creditor of her husband giving him further time to pay his debt, executed a deed jointly with her husband, in form a mortgage, of real estate, to secure its payment. This deed was not acknowledged according to the Acts of Assembly in relation to conveyances of land by feme covert grantors, nor did it purport to be in execution of a power reserved to her, but being for property, in fact held in trust for her separate use, which she had a right to convey as a feme sole, was considered in equity as creating a specific lien, and enforced accordingly.  

COUNSEL:
Moale, for the appellants, contended, 1. That the deed or instrument of writing dated June 12th, 1819, from Poor and wife, to Brundige, Vose and Worthington, created a lien in equity on the property therein mentioned, and the complainants have a specific lien thereon, to the amount of the sum of money mentioned in said deed, and intended to be secured thereby. 2. That the deed of trust executed by Poor and wife, on the 24th of August, 1816, to Columbus O'Donnell and John H. Poor, grants to Deborah Poor full power to contract for, and dispose of, the said property, and by the trusts mentioned therein there is reserved to the said Deborah the power of disposition [**13]  thereof. 3. The answer and plea filed by the said Poor and wife, do not bar the complainants from the relief sought by them. 4. The Chancellor, in dismissing the complainants bill, erred in not dismissing the same without prejudice.

He cited in his argument, Beames Eq. Plea. 339, 240. Harr. Ch. Pr. 599. Mitf. 238. Beames Eq. Plea. 41. Mitf. 177, 239. Chase vs. M'Donald and Ridgely, 7 Harr. and Johns. 176, 198. Price and Nisbet vs. Bigham, Ib. 298. 3 Johns. Ch. Rep. 77. Jacques vs. Trustees of the Methodist Church, 17 Johns. Rep. 548. Woods vs. Fulton and Starck, 4 Harr. and Johns. 329. Smith and others, vs. Everett and others, 4 Bro. Ch. Rep. 64. Ex parte Wills, 1 Ves. Jr. 162. Legard and Hodges, Ib. 477.

Winchester, for the appellees. 1. This is a bill to foreclose a mortgage, and nothing else; the original and amended bills have all this character, and the appellants now ask for relief, not warranted by the bill. Under the general prayer, they are only entitled to such relief as is consistent with their bill. The object of the bill, then, being to obtain a sale of mortgaged property, and its specific prayer looking alone to that object, they cannot now be allowed to ask [**14]  for the execution of a contract, defectively executed. A bill made for one purpose, cannot be applied to another. Chalmers vs. Chambers, 6 Harr. and Johns. 29. 2. The deed of trust from Poor and wife, to O'Donnell and John H. Poor, was founded upon a meritorious consideration; and the complainants can have no equity as strong as that of the wife. The whole question, then, is on the validity of the mortgage, which he contended was void at common law, and under the act of Assembly, and that it was not an execution of the power under the deed of trust. The mortgage was void under the act of Assembly, because the wife was not examined privately, and apart from her husband. It is no execution of the power reserved to her by the trust deed. It does not refer to that deed, or manifest an intention to execute the powers with which it clothes her. Such powers must be strictly executed, especially in the absence of a valuable consideration. 1 Madd. Ch. 44, 45. Colter vs. Layer, 2 P. Wm. 623, 624. 1 Scho. and Lef. 62, 63.

This is not such a defective execution of the power, as a court of equity will aid. It was, at most, a voluntary assignment, without consideration, and there is nothing [**15]  on the face of the instrument indicative of an intention to execute the power. 3. The appellees are concluded by the plea, the legal sufficiency of which, they have admitted by the replication. Chase vs. McDonald & Ridgely, 7 Harr. and Johns. 181.

Taney, Attorney General, on the same side.

1. The legal sufficiency of the plea being admitted by the replication, and the facts being established, the plaintiff's bill must be dismissed. Mitf. Plea. 241. Chase vs. McDonald & Ridgely, 7 Harr. and Johns. 198.

2. The bill claims relief, not on the ground of a separate estate of the wife, but upon a mortgage executed by husband and wife, for a debt due from husband and wife; without reference to any separate estate of the wife, or any power to mortgage by virtue of the deed of trust. In order to obtain relief on such a bill, he must show a mortgage of a legal or equitable estate, executed according to the act of Assembly, so as to bar the right of a feme covert. He cannot support the case he has stated, by shewing the execution of a power by the wife, or a contract to mortgage her separate estate, by virtue of a trust for her separate benefit; for either of them would be a different [**16]  ground of relief, and a different equity, from the one he has stated.

The mortgage is not properly acknowledged to bind a feme covert, nor would it bind her, being a feme covert, as a contract to mortgage, independent of her separate interest under the deed of trust--and as that interest is not alleged in the bill, and her interest under the deed of trust is not stated as a ground of relief, the case charged in the bill, fails in the proof, and the bill must be dismissed.

3. If, under the statement in the bill, the deed of mortgage can be relied on, as the contract of a married woman to mortgage her separate estate, and as thereby creating, by her contract, a specific lien on her property, it ought to have been so charged in the bill; and the deed of trust, giving her the power, should have been set forth, and the consideration for the contract stated, so as to shew the equity of the complainants to claim the execution of the agreement to encumber, against Mrs. Poor. Chalmers vs. Chambers, 6 Harr. and Johns. 29. Coop. Eq. Plea, 13, 14.

In the case of Price and Nisbet vs. Bigham, 7 Harr. and Johns. 296, the contract to charge the land with the debt was set out, and the [**17]  consideration for the agreement fully stated, and the contract and consideration proved, as stated in the bill. In this case, nothing is charged but the mortgage, and the specific lien is alleged to arise by reason of the mortgage, and no other contract but a mortgage is stated; and the equitable consideration of a joint debt from husband and wife, charged in the bill, is not proved.

4. If the facts were all proved, there is no equity upon which the complainants can claim a specific execution; it was the separate debt of the husband, and due from him as security.

5. The instrument called a mortgage, does not profess to be the execution of the power reserved in the deed of trust; and does not appear, and is not alleged to have been so intended.

Williams, (District Attorney of U. S.) in reply.

The relief we ask, is conformable to the case made by the bill. Our prayer is, that the specific property may be sold, and the case made by the bill is such, as to justify this prayer. The instrument of writing which furnishes the foundation of the complainants bill, though called a mortgage, is but an equitable contract. The case in 6 Harr. and Johns. 29, relied on, on the [**18]  other side, is not analagous to this; there, the prayer of the bill was to have the deed recorded, and the decree ordered a sale of the property. The relief granted was entirely different from the case stated in the bill, and from the relief prayed. This bill has a double aspect; it asks that the mortgage may be considered a specific lien, and also for a sale of the property.

Whether the defence set up, be a plea or answer, the doctrine asserted by the Chancellor is not law in this State. Chase vs. McDonald & Ridgely, 7 Harr. and Johns. 170, 176, 178, 181, 197, 198. It is, however, no plea, possesses none of the forms or features of a plea, either in its commencement or conclusion. Beames Eq. Pleas, 333 to 349, 40, 42, 44, 48, 49. Mitf. 300, (Ed. 1827,) 299, 219, 294, 300. Ham. Dig. 427. Coop. Plea, 223, &c., 229, 231. Ferguson vs. O'Hara, 1 Peters Cir. Court Rep. 493. Saltus and Saltus vs. Tobias and Seaman, 7 Johns. Ch. Rep. 214.

If the defence was originally a plea, the agreement signed by the counsel deprives it of that character; for that agreement expressly says, it shall be taken as an answer.

The mortgage deed is not merely voluntary, as is alleged on the other [**19]  side; it was made for a valuable consideration. That married women can transfer their separate estate, he referred to 3 Johns. Ch. Rep. 129, 144. Price and Nisbet vs. Bigham, 7 Harr. and Johns. 296. 3 Johns. C. Rep. 77, 7 Harr. and Johns. 296.

The deed is good as a mortgage of an equitable estate, and was properly executed; the trust deed rendering a private examination unnecessary. 3 Johns. Ch. Rep. 77, 89. Jacques vs. Methodist Church, 17 Johns. Rep. 577. 17 Johns. Rep. 577. But if the deed is defective, a court of equity, under the circumstances of this case, has the power, and will cure the defect. Methodist Church vs. Jacques, 1 Johns. Ch. Rep. 75. 1 Madd. Ch. 44, 45. Hunt vs. Rousmaniere, 1 Peters Rep. 13.  

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

OPINIONBY:
ARCHER 

OPINION:

 [*12]  ARCHER, J. delivered the opinion of the Court.
The decision in Tiernan vs. Poor and wife, at the last term of this Court, has settled the principal questions upon which this cause must turn.
From the doctrines there maintained, Mrs. Poor possessed a right to encumber her property by deed, or contract, provided the same should be founded on a sufficient consideration. [**20]  
It was further decided, that although the paper, purporting to be a mortgage, and which was the foundation of the suit, was not acknowledged according to the provisions of the acts of Assembly, whatever might be the effects of such omission, in taking from the instrument the character, technically speaking, of a mortgage, yet that equity would treat 

 [*13]  it as a mortgage, so far as to authorize a Court of Chancery to decree a sale of the property, covered by it, for the payment of the debt it was executed to secure.
Taking the facts stated in the bill as true, there would be a sufficient consideration upon which to ground the complainant's bill; for that avers, that the defendant being indebted, executed the mortgage.
Admit the facts in the answer to be true, and a sufficient consideration is also manifested. There it is stated, that the mortgage was executed by Poor and wife, to secure to Tappan, one of the complainants, a debt which Poor owed him, and that it was made in consequence of Tappan's agreeing to extend the time of the payment of Poor's debt. Tappan's agreement to extend the payment, in consideration of the receipt of the mortgage, furnished [**21]  a sufficient consideration to sustain the complainant's equity.
All the material allegations of the bill are admitted by the answer. In addition to a sufficient consideration as above stated, it is admitted that the instrument was executed. With these admissions, the instrument becomes, in the language of the bill, a specific lien on the property it covers.
There is, however, one fact averred in the bill, which is not admitted in the answer,--the joint indebtedness of the husband and wife; but that cannot be material, because the equity of the complainant is the same, whether the allegation that they were jointly indebted, be true or not. The real and only controversy is this: does there exist a specific lien on the property? and that the lien exists, whether they were jointly indebted, or whether Poor was indebted, and they jointly executed the instrument in consideration of forbearance.
It is not necessary to express any opinion as to the effect of replying to a plea, because we do not consider there is any plea filed in the cause. The paper filed by the defendant, which he indiscriminately calls a plea, and an answer, we consider as nothing more than an answer; and it is [**22]  perfectly apparent from the proceedings in the cause, and from 

 [*14]  the agreement of counsel, which constitutes a part of the cause, that it was so considered and treated by them.
The decree of the Chancellor is REVERSED, and the cause remanded to the Court of Chancery, that a sale of the property may be there decreed, to satisfy the debt of the complainants.
DECREE REVERSED.  

36 of 44 DOCUMENTS 

GOWAN vs. SUMWALT.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

1 G. & J. 511; 1829 Md. LEXIS 43 

December, 1829, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from the Court of Chancery. The proceedings which took place on the petition which was filed in this case by the appellee, Frederick Sumwalt, on the 12th of April, 1826, are sufficiently set forth in the opinion delivered by this court.

BLAND, Chancellor, (March term, 1827.) This matter standing ready for hearing, and the solicitors of the parties having been heard, the proceedings were read and considered. The only question is whether in point of fact Sumwalt was with the consent of Gowan to take his place, and be considered as the purchaser from the trustees. I am satisfied from the proofs that Gowan did agree, that Sumwalt should be deemed the purchaser; and having thus failed to shew sufficient cause as required by the order of the 13th of April, 1826, it is therefore ordered that an injunction issue, commanding the said Gowan to deliver possession of the property in the proceedings mentioned, to the said Sumwalt, returnable forthwith. From this order the defendant appealed to the Court of Appeals.  

DISPOSITION:
DECREE REVERSED.  

HEADNOTES:

It is the common practice, where a purchaser under a decree in Chancery is kept out of possession by the former owner, for the Chancellor to interpose the authority of that court, and cause the possession to be delivered up.

But where G purchased property at a sale under a decree, and gave his notes with S as his surety for the purchase money, which S was afterwards obliged to pay, and G then executed a deed of the same property to S, which however was left with I as an escrow, to be delivered upon a condition that did not appear to have been performed, G being in possession, could not be ousted by the authority of the Court of Chancery; and even if a mortgage had been executed by him to secure S, the proceedings in Chancery should be of a different character. 

COUNSEL:
Flusser for the appellant, cited 4 Com. Dig. 473, (Am. Ed.) 274, (note r.) Rob. on Frauds, 108. Sugd. 68. Newl. Pr. 339, 142, 150. Sugd. 40.

Winchester [**2]  for the appellee contended, that Gowan's rights were not affected by the decision of the Chancellor; and that an appeal would not lie from an order to deliver possession.  

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

OPINIONBY:
BUCHANAN 

OPINION:

 [*512]  BUCHANAN, Ch. J. delivered the opinion of the court.
The substance of this case as it is presented to us by the proceedings, appears to be this. A decree in Chancery being passed, and trustees appointed for the sale of a certain lot or parcel of ground in the city of Baltimore; the premises were sold at public sale by the trustees, and purchased by Gowan, the appellant, who passed his notes for the purchase money, with Sumwalt the appellee, and another, as his sureties. The sale was regularly reported by the trustees, and ratified and confirmed by the Chancellor; and the purchase money not being paid, suits were brought, and judgments obtained against the purchaser, Gowan, and his securities. Sumwalt discharged the judgments obtained for the purchase money, and the trustees and Gowan united in an instrument of writing, purporting to be a deed to Sumwalt [**3]  for the premises, which had been before sold to Gowan. Gowan continuing in possession, Sumwalt preferred a petition to the Chancellor, alleging that he had been substituted as the purchaser, and that a deed for the premises had been made to him by Gowan and the trustees, and praying an order to compel Gowan to deliver up the possession. Gowan 

 [*513]  in his answer positively denies that it ever was agreed or understood, that Sumwalt should be substituted in his stead as the purchaser, or that he ever was so substituted; and states that it was agreed between them, that Sumwalt should take a deed of conveyance of the premises from the trustees, and execute a bond to reconvey to him, on being reimbursed the amount of the purchase money by a stipulated time; and alleges that when the deed was executed, it was left by him in the hands of a third person to be delivered to Sumwalt, on his executing and delivering a bond to reconvey the property to him, on the terms before agreed upon, and not otherwise; but that Sumwalt afterwards by fraud and artifice obtained possession of the deed, and then refused to execute a bond of conveyance, and expressed his [**4]  determination to hold the property. Upon the proof taken in the cause the Chancellor was of opinion, that Gowan did consent to Sumwalt's being substituted in his stead, as the purchaser, and passed an order for an injunction commanding him to deliver possession; from which order the case is brought by appeal before this court. It is the common practice where a purchaser under a decree in Chancery is kept out of possession by the former owner, for the Chancellor to interpose the authority of that court, and cause the possession to be delivered up. But that does not seem to us to be the character of this case. It is the case of one, who not being the purchaser himself, seeks to obtain the possession of the premises, by proceedings against him who was in fact the purchaser. How far this would be a fit case for this summary mode of proceeding, if it could be shown that Gowan did agree to permit Sumwalt to be substituted as the purchaser is not a question before us; there being nothing in the evidence in our opinion to establish that fact. The proof by Mr. Moale (one of the trustees) who prepared the deed is, that Gowan consented that the property should be conveyed [**5]  by the trustees to Sumwalt, but insisted on being permitted to redeem it, by paying the amount of the judgments, and that Sumwalt agreed to allow him sixty days, and promised to reconvey him the property if he paid him the money, at the expiration of that time. That Gowan repeatedly said Sumwalt 

 [*514]  was ungenerous; that sixty days was not enough, and that he ought to allow him a longer time. Mr. Harris one of the Justices who took the acknowledgment, proves that there was some hesitation on the part of Gowan about signing the deed, the particulars of which he does not recollect, but that he finally signed it, with the understanding, that it was not to go out of the possession of Mr. Israel. Another witness swears that Sumwalt told him he never wanted the property for his own use, and was willing to give the time craved by Gowan for the payment of the money, which he said was sixty days. And Mr. Israel, the other magistrate who took the acknowledgment, proves that when the deed was presented to Gowan for signature, he hesitated about signing it, saying there was an understanding between himself and Sumwalt relative to the property [**6]  which ought to be reduced to writing, and stated in the presence of Sumwalt, something not recollected by the witness, about a right to be reserved to him to have a reconveyance of the property, on his paying the purchase money, to which Sumwalt assented. That he the witness then proposed, that the deed should be executed, and left with him, until matters were satisfactorily arranged, to which Gowan agreed. That the deed was accordingly executed and left with him. That Sumwalt called for it once or twice in the course of a day or two afterwards, and that he refused to deliver it to him; but finally delivered it to Mr. Moale, who said he would see the matter arranged between the parties. There does not appear to us to be any thing in the whole of this testimony, tending to prove that Gowan ever agreed or intended that Sumwalt should be substituted in his room as the purchaser, or that it was so understood by Sumwalt himself, and all the evidence shows that the deed was not delivered by Gowan to Sumwalt as his deed, but was left with Israel, as an escrow, to be delivered on a condition that does not appear to have been ever performed. It is [**7]  not therefore, and cannot be taken as the deed of Gowan, and consequently is no evidence of any assent on the part of Gowan to Sumwalt being taken as the purchaser. And all that can be collected from the parol evidence is, the intention of the parties, 

 [*515]  that the property should be conveyed to Sumwalt, as a pledge only to secure the repayment of the purchase money, and not that he should be substituted, as the purchaser, which intention was never carried into effect. And if it was; if a mortgage had been regularly executed, and delivered, the proceedings in chancery on the failure, by Gowan to repay the amount of the purchase money, should have been of a different character.
DECREE REVERSED.  

37 of 44 DOCUMENTS 

OSGOOD vs. SPENCER'S Ex'r.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

2 H. & G. 133; 1828 Md. LEXIS 4 

June, 1828, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Kent County Court. This was an action of assumpsit on a promissory note, brought in the name of the surviving payee, (the now appellant,) against the executor of one of the drawers, (the appellee.) The defendant pleaded non assumpsit testatoris, and issue was joined.

At the trial the plaintiff offered in evidence the following note:

"$ 666 66.     Baltimore, 4th May, 1819.

Ninety days after date, we promise to pay H. & R. H. Os-good six hundred and sixty-six dollars and sixty-six cents, without defalcation.

J. Campbell,

W. Gilbert,

William Spencer.

Witness, Jno. Somerville."

The due execution of which note was admitted by the defendant. On an objection made to the reading of the said note, the court determined the note was competent testimony, as the due execution was admitted. It was also admitted by the defendant, that Henry Osgood, one of the payees in the note, was dead before the institution of this suit. It was admitted by the plaintiff that John Campbell and William Gilbert, the other persons named with William Spencer as drawers, are both in full life. The defendant moved the court to instruct the jury, that if they believed [**2]  the said Campbell and Gilbert to be still alive, this action could not be sustained against the defendant, as executor of William Spencer, deceased; but that the only remedy at law was by suit against the surviving drawers. The Court, [Earle, Ch. J. and Purnell and Wright, A. J.] gave the jury the instruction as prayed by the defendant. The plaintiff excepted; and the verdict and judgment being against him, he appealed to this court.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

On a joint promissory note, after the death of one of the drawers, the remedy at law exists alone against the surviving drawers, and is extinguished against the representatives of the deceased drawer. The only remedy which the payee or endorsee has against such representative, is in equity.

Matter in bar which shows the irresponsibility of the defendant at the commencement of the suit, may be given in evidence under the general issue without being reduced to the form of a special plea.

So in an action against the executor of one of several makers of a joint promissory note, to recover the amount thereof, where the other co-drawers were alive at the commencement of the suit, it is not necessary for the defendant to plead their survivorship in abatement, but it may be given in evidence under the general issue. 

COUNSEL:
Chambers, for the Appellant, contended, 1. That a plea in abatement, stating the facts, was the only mode in which the defence could be made by the defendant in the court below. Or, 2. That at all events it should have been pleaded in bar, and could not be given in evidence on the general issue. He cited Brown v Warham, 3 Harr. & Johns. 572. Pike v Dashiell's Adm'r. 7 Harr. & Johns. 466. The act of 1811, ch. 161. Anthon's Dig. 2. Eccleston v Clipsham, 1 Saund. 154, (note 1.) 1 Bac. Ab. tit. Abatement, (N) 25.

Spencer and Carmichael, for the Appellee, cited 1 Bac. Ab. tit. Abatement, (N) 25. Owen v Butler, 1 Ld. Raym. 345. 1 Chitty's Plead. 334, 37, (note u,) 434. Evans v Stevens, 4 T. R. 227. 5 Bac. Ab. 163. Cabell v Vaughan,  [**3]  1 Saund. 291, (note.) 

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

OPINIONBY:
ARCHER 

OPINION:

 [*134]  ARCHER, J. delivered the opinion of the Court. The question presented by the bill of exceptions is, whether the defendant was bound to plead in abatement, that his testator was a co-drawer of the promissory note declared on, with others who are living, and that the right of action had survived against the survivors, and was extinguished as to him; or whether it might be given in evidence under the general issue?
No case has been cited which is in terms decisive of the present question. But an examination of some admitted principles of law cannot fail to lead to a correct conclusion.
It is undeniable, and has been conceded in argument, that on joint contract, such as this, the remedy at law exists alone against the surviving drawers, and that it is extinguished against the representatives of the deceased drawer, and that the only remedy which the payee or endorsee has against such representative is in equity.

 [*135]  The death of the defendant's testator, and the survivorship of his co-drawers, was then a complete and full answer to any action in a court of law against [**4]  him, and would forever operate in such tribunal as a bar. If put upon the record as a plea, it is not to be considered, as are pleas in abatement, merely dilatory, but as one reaching the merits of the plaintiff's claim against the defendant, and as finally conclusive of it.
This being the character of the defence, it is properly matter in bar, and not in abatement; which latter in general presupposes a right to proceed against the defendant in some other form, as in conjunction with others not sued, or at some other time, as in the case of an alien enemy; but this defence denies the defendant's liability altogether, at any time, or in any shape, in a court of law. It being matter in bar which shows the irresponsibility of the defendant at the commencement of the suit, it may be given in evidence under the general issue, without being reduced to the form of a special plea.
Most defences may be given in evidence under the general issue in assumpsit, except limitations, insolvency, set-off and tender, or alien enemy where the disability of the plaintiff accrued by war after the contract was made. We are inclined to think there will be found few other exceptions. If a general release,  [**5]  before suit brought, need not be pleaded, it would be difficult to assign a sensible reason why this defence, which is as operative and conclusive at law as would be a release, should be plead? The effect in discharging the defendant is in each case precisely the same. In the one the release is the act of the party, in the other the act of the law.
JUDGMENT AFFIRMED.  

38 of 44 DOCUMENTS 

WEEMS, et al. vs. MILLARD.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

2 H. & G. 143; 1828 Md. LEXIS 8 

June, 1828, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Saint-Mary's County Court. The plaintiffs in the court below, (now appellants,) brought an action of as sumpsit against the defendant, (the appellee.) The declaration (having been twice amended,) contained two counts. The first count stated, that the plaintiffs, being proprietors and owners of the steam-boat Surprise, heretofore, to wit, on, &c. at, &c. caused the said steam-boat to be advertised and put up for sale in shares, in manner and form following; that is to say--"We the subscribers, promise and oblige ourselves, our heirs and executors, to pay, or cause to be paid, unto George Weems and Company, the sum we may subscribe, as a payment for the steam-boat Surprise, in three equal instalments, in manner and form following, to wit: One third on or before the tenth day of March next; one third on or before the tenth day of May; and the balance on or before the tenth day of June next. It is hereby understood that we, George Weems and Company, bind ourselves to appropriate the money subscribed in no other manner, than for the payment and use of the said boat; and that each subscriber will hold an interest in proportion to the shares they may take, and will be entitled [**2]  to draw their proportion of dividends once in every six months after the starting of the said boat. We George Weems and Company, bind ourselves to run the said boat from Baltimore to Patuxent river, and as far as Nottingham, and to use every possible exertion in our power to the interest of the said boat. The shares will be divided into two hundred and eighty shares, at one hundred dollars each." a. That on such exposure to sale as aforesaid, to wit, on, &c. at, &c. the defendant became the purchaser of, and with his own hand subscribed the said proposals of sale, of and for one share in the said steam-boat, upon and according to the said conditions; and thereupon afterwards, to wit, on, &c. at, &c. in consideration that the plaintiffs, at the special instance and request of the defendant, had then and there undertaken, and faithfully promised the defendant, to perform and fulfill all things in the said conditions contained on their part to be performed, the defendant then and there undertook and promised to the plaintiffs, to perform every thing in the said conditions on his part to be performed. That although the plaintiffs have been ready and willing, &c. of which the defendant [**3]  had notice, &c. and was requested by the plaintiffs to pay them the said $ 100; yet the defendant, &c. The second count stated, that the plaintiffs before and at the time of making the contract and undertaking thereinafter mentioned, to wit, on, &c. at, &c. being the proprietors of a certain steam-boat called The Surprise, before that time purchased by them, and for which they had not then paid. And whereas the plaintiffs had agreed to divide the interest in the said boat, and the ownership thereof, into shares, to be taken and subscribed for by those who were willing to take and subscribe for the same, and to retain the shares remaining unsubscribed for, to and for their own use, and to be the holders of such stock or shares, which should remain unsubscribed for, and not taken; of all which the defendant then and there had notice. And whereas the plaintiffs, in pursuance of such agreement, on, &c. at, &c. issued the following terms and proposals, to be signed by such persons as would sign the same, to wit: "We the subscribers promise," &c. [as stated in the first count.] That the plaintiffs, at the special instance and request of the defendant, did, on, &c. at &c. suffer and permit [**4]  the defendant to become the purchaser of, and a subscriber with his own proper hand, for one of said shares in the said boat, upon the terms and conditions as aforesaid; and thereupon afterwards, to wit, on, &c. at, &c. in consideration that the plaintiffs, at the special instance and request of the defendant, had then and there undertook and faithfully promised to the defendant, to perform and fulfil all the things in the said condition on their part to be performed, he the defendant then and there undertook and promised to the plaintiffs to perform every thing in the said condition on his part to be performed. That although the plaintiffs have the day and year aforesaid been ready and willing to perform every thing in the said agreement contained on their part and behalf, to be performed and fulfilled, of which the defendant afterwards on, &c. at, &c. had notice, and was then and there requested by the plaintiffs to pay them the said sum of one hundred dollars; yet the defendant his promises and assumptions so as aforesaid made, not regarding, &c. To this declaration there was a general demurrer, and joinder in demurrer; and the county court sustained the demurrer, and rendered judgment [**5]  for the defendant. From which judgment the plaintiffs appealed to this court.

a This agreement was filed on issuing the writ, and forms a part of the record. 

DISPOSITION:
JUDGMENT REVERSED, AND PROCEDENDO AWARDED.  

HEADNOTES:

Upon a general demurrer to a declaration, the only question to be determined by the court, is whether the facts contained in it, (the truth of which are confessed by the demurrer,) show such a case as can be enforced in a court of law.

How far the allegations in the declaration can be sustained by proof, or what is the legal effect of the contract signed by the defendant, (a copy of which was exhibited in a part of the record not under consideration,) are inquiries which do not arise under such a state of pleadings.  

COUNSEL:
C. Dorsey, for the Appellants, contended, that the action could be sustained, in opposition to the opinion of the court below, deciding that the contract was void for uncertainty. The grounds upon which the action was decided as not sustainable, was that the plaintiffs and defendant were partners in the steam-boat; and that the contract was inartificially drawn. Where a sum of money is to be paid by one partner to another by a contract, an action will lie for its recovery. 3 Bac. Ab. 709. 1 Chitty's Plead. 26. Venning v Leckie, 13 East, 7. Van Ness v Forrest, 8 Cranch, 30. Duncan v Lyon, 3 Johns. Ch. Rep. 351.

Stonestreet and Magruder, for the Appellee. The contract is uncertain, and incapable of being executed. No steps were to be taken under it until the whole fund was raised to effect the purchase of the steam-boat. The contract does not say of whom the boat was to be purchased, nor by whom, nor what sum of money should be necessary for the purchase. The contract [**6]  was never consummated, and no partnership was ever formed. The contract, as exhibited in the record, was not signed by the plaintiffs so as to bind them. The whole number of shares was not subscribed, and there was to be no payment made on any share unless the whole fund was raised, nor was the boat to be purchased until then. To carry the contract into effect the whole sum necessary for the purchase of the boat should be subscribed, and the contract signed by the plaintiffs.

C. Dorsey, in reply. The declaration avers that the plaintiffs were the owners of the steam-boat, &c. The general demurrer admits all the averments in the declaration to be true. A contract need not be signed by the party who seeks to enforce it. Rob. on Frauds, 124.  

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

OPINIONBY:
DORSEY 

OPINION:

 [*146]  DORSEY, J. delivered the opinion of the Court. This case has been argued by the counsel for the appellee, as if we were 

 [*147]  called on to review an opinion of the court below upon the sufficiency of the testimony offered on the trial, to entitle the plaintiffs to recover. But this is not the duty which we have now to discharge. The [**7]  only question to be determined is, whether the facts contained in the declaration, as amended, (the truth of which is confessed by the demurrer,) show such a contract as can be enforced in a court of law? That they do, we entertain no doubt. But how far the allegations in the declaration can be sustained by proof, or what is the legal effect and operation of the subscription list signed by the defendant, (a copy of which is exhibited in a part of the record, not now under consideration,) are inquiries which do not arise in the present state of the pleadings.
JUDGMENT REVERSED, AND PROCEDENDO AWARDED.  

39 of 44 DOCUMENTS 

LAIDLER vs. THE STATE, use of HAWKINS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

2 H. & G. 281; 1828 Md. LEXIS 20 

June, 1828, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Charles County Court. Debt upon the same testamentary bond as that mentioned in the preceding case of Laidler's Adm'x. v The State, use of Hawkins, (ante 277,) brought against Catherine C. Laidler, (now appellant,) one of the sureties therein. This case, like that referred to, was continued for several terms under a rule on the defendant to plead to the declaration; and at August term 1819 the cestui que use filed the same account and proof as stated in the before mentioned case. The same agreement as to the pleadings, was also entered into; and at that term, (August 1819) the defendant confessed judgment to the plaintiff, which was entered for the penalty of the bond, (the debt declared for,) and costs; with an agreement that the judgment should be void on payment of 3900 pounds of nett crop tobacco, with interest from the 20th of August 1819 until paid, and costs. From which judgment the defendant appealed.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

In an action on a testamentary bond, after the plaintiff had filed his declaration, the defendant confessed a judgment for the penalty of the bond and costs, with an agreement that the judgment should be void, on payment of 3900 pounds of nett crop tobacco, with interest until paid, and costs--Held, that this confession superseded the necessity of assigning breaches of the condition of the bond, and authorised a judgment for the plaintiff.

Where the court may be called on to pronounce an opinion on the plaintiff's right to recover, the intervention of a jury being necessary to assess the damages sustained, there an assignment of breaches, either in the declaration, or by way of replication, or entry on the roll, as the case may be, is necessary; but where every thing is confessed, and nothing is left for the decision of either court or jury, the assignment of breaches is an act of supererogation. 

COUNSEL:
Ashton for the Appellant.

No counsel argued for the Appellee.  

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

OPINIONBY:
DORSEY 

OPINION:

 [*281]  DORSEY, J. delivered the opinion of the Court. This [**2]  case; although upon the same bond and with the same pleadings, as the case of Laidler's Adm'x. v The State, use of Hawkins; 

 [*282]  decided by this court at the present term, (ante 277,) must receive a different determination. There the judgment was rendered below, upon trial and verdict, without any admissions or consent of the defendant. Here the judgment was rendered by the county court, on the defendant's confession, that the plaintiff had a right to recover; thereby admitting of record the compliance with the prerequisites of the act of 1720, ch. 24. And the confession also ascertains the precise sum, on payment of which the penalty recovered was to be released. This confession withdraws the plea of general performance, and admits every thing which the plaintiff desires to establish, or could be required to bring to issue by regular pleadings. Could it then be necessary--is it consistent with any rule of pleading, that the plaintiff should file a replication, the statements in which, are neither an answer to, nor a denial or avoidance of, any of the matters alleged by the defendant? Where the court may be called on to pronounce an opinion on the plaintiff's right [**3]  to recover, where the intervention of a jury is necessary to assess the damages sustained, there an assignment of breaches, either in the declaration, or by way of replication, or entry on the roll, as the case may be, is indispensably necessary. But where every thing is confessed, where nothing is left for the decision of either court or jury, the assignment of breaches is an act of supererogation. And such is the effect of the decision of this court in the case of M'Mechen v The Mayor, &c. of Baltimore, 2 H. & J. 41, where, in an action upon an auctioneer's bond, the defendant pleaded general performance, but afterwards withdrew his plea and confessed judgment--On an appeal to this court, where one of the errors assigned was the want of a replication assigning breaches, the court affirmed the judgment.
The question as to the insufficiency of the pleadings, subsequent to the declaration, does not arise in this case, as the judgment was not rendered upon them, but upon the defendant's confession.
JUDGMENT AFFIRMED.  

40 of 44 DOCUMENTS 

DYER vs. DORSEY and EDELEN.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

1 G. & J. 440; 1829 Md. LEXIS 35 

December, 1829, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Charles County Court. This was an action of covenant, brought on the 2d of February, 1824, by the appellant, (the plaintiff in the County Court) against the appellees, the defendants in that court, on the following agreement, to wit: C. Dorsey having sold to William C. Dyer, tracts or parcels of land, sold by Henry Anderson to Campbell and Ritchie, and by their agent, Henry H. Chapman, sold to C. Dorsey, and for which lands the said Dorsey has executed a deed to the said William C. Dyer. Now we hereby covenant and bind ourselves to the said Dyer, that a deed shall be executed to the said Dyer, conveying to him the said lands during the month of August, of Campbell and Ritchie, and to this we bind ourselves in the penalty of two thousand dollars. Witness our hands and seals this eleventh of June, 1822.

The breach laid in the declaration was, that the defendants had not executed, or caused to be executed to the plaintiff, a conveyance of the title of Campbell and Ritchie, at the time mentioned for that purpose in the said agreement, before or since; but that they had wholly neglected, and refused so to do. The defendants pleaded non infregit conventionem. Issue joined.  [**2]  

At the trial the plaintiff read in evidence, the covenant on which this action was brought, which the defendants admitted was signed and sealed by them. He then read in evidence the following agreement: "Memorandum of an agreement, entered into on this 26th day of April, 1822, between Clement Dorsey, of Saint Mary's county, and William C. Dyer of the other part; the said Dorsey covenants and agrees to sell to the said Dyer the land which he bought of Henry H. Chapman, and which was conveyed to him by Henry Anderson, and to give him possession thereof at Christmas next, for which the said Dyer covenants to pay him twenty-five hundred dollars; if the said Dorsey request it, the said Dyer is to pay him one thousand dollars when called on, and the residue at Christmas next; the said Dorsey stipulates to give the said Dyer a good and legal title to the same in fee simple, with a general warranty; the said Dorsey has the use of the same this year, but is not to cut wood or timber therefrom, and is to permit the said Dyer to seed thereon; the said sum of one thousand dollars is not to be paid till the deed is executed to the said Dyer. In witness whereof," &c. He then gave in evidence [**3]  to the jury, that he had paid C. Dorsey, one of the defendants, the sum of fifteen hundred dollars. The defendants then proved, that the plaintiff had held possession of the land in question, since the original purchase up to this time, and gave evidence that the plaintiff admitted that he owed the defendant Dorsey, upwards of one thousand dollars, for the land purchased of the said Dorsey, of which the plaintiff has had uninterrupted possession to this time. The plaintiff then prayed the court to instruct the jury, that from the pleadings and the evidence in this cause, the plaintiff was entitled to recover the penalty of two thousand dollars, in the said agreement mentioned, upon which the action is brought, which opinion and direction the court refused to give, but were of opinion, and so instructed the jury, that the sum of money which it might be necessary to pay for the obtaining of the title of Campbell and Ritchie, would furnish the true measure of damages in this case, and that the proof of that fact was upon the plaintiff. They further instructed the jury that in estimating the amount of damages in this case, they should deduct whatever sum of money remained in the hands [**4]  of the plaintiff, on account of the purchase made by him of Clement Dorsey the defendant; the plaintiff excepted, and the verdict and judgment being but for nominal damages, he appealed to this court.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

In an action upon agreement, by which, after reciting that D had sold to W tracts or parcels of land, sold by A to C and R, and by their agents sold to D, and for which D had executed a deed to W; D covenanted with W, that a deed should be executed to him, conveying to him the said lands of C and R, by a given day, and to that, bound himself in a certain penalty;--such penalty cannot be recovered as liquidated damages, it was only intended by the parties as a security for the faithful performance of the contract.

In this case, the sum of money which it might be necessary to pay, for obtaining the title of C and R, would furnish the true measure of damages, for a breach of D's covenant the proof of which sum was on the plaintiff; and it appearing that the plaintiff had not paid D the whole of the purchase money for the said lands, the jury were properly instructed that in estimating the amount of damages, they should, under the act of 1785, ch. 46, sec. 7; deduct whatever sum of money remained in the hands of the plaintiff on account of said purchase.  

COUNSEL:
Stonestreet for the appellant, referred to Cannell vs. M'Lean, 6 Harr. & Johns. 297.

C. Dorsey, for the appellees, referred to the act of 1785, ch. 80, sec. 13. He contended that the case in 6 Harr. & Johns. was not applicable, as the party there was not in possession of the land.  

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

OPINIONBY:
ARCHER 

OPINION:

 [*442]  ARCHER, J. delivered the opinion of the court.
The penalty cannot be recovered in this case as liquidated damages. It was only intended by the parties as a security for the faithful performance of the contract.
The value of the land at the time of the breach of the contract ought not, as has been contended, to constitute the measure of damages, for such a rule applied here, would work this injustice. The plaintiff would obtain the value of the land, and would moreover hold Dorsey's right and title, having obtained a conveyance for the same, and would be left in possession [**5]  of the land. Some outstanding right to these lands existed in Campbell and Ritchie, but its precise nature and character does not distinctly appear. Anderson was their original proprietor, who sold them to Campbell and Ritchie, and Chapman the agent of Campbell and Ritchie, sold them to Dorsey. The right, whatever 

 [*443]  it was, which Dorsey acquired under these contracts, was conveyed by deed to the plaintiff. These facts shew how essentially this case varies from the case of Cannell vs. M'Clean, 6 H. & J. 297. The rule laid down by the court below, as to the measure of damages, is the correct rule to be applied to this controversy. It completely secures the plaintiff, and indemnifies him against the defendant's breach of the contract. We also concur with the court below in the opinion by them expressed, that the onus of proof in this respect, lies upon the plaintiff; for the plaintiff must always be prepared with proof to shew the extent of injury he may have sustained, by the breach of any contract, before he can be entitled to recover his measure of damages.
We perceive no error in the direction which the court [**6]  gave to the jury, that they ought to deduct from the damages they should find, whatever sum of money remained in the hands of the plaintiff, on account of the purchase made by him of Dorsey. The doctrine held out by this opinion, is maintained and settled by the Court of Appeals, in the case of the Baltimore Insurance Company vs. M'Fadon, 4 H. & J. 31, in which the court have given a construction to the act of 1785, ch. 46, sec. 7, in relation to set off.
JUDGMENT AFFIRMED.  

41 of 44 DOCUMENTS 

MUNNIKUYSON'S Adm'x. vs. DORSETT'S Adm'x.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

2 H. & G. 374; 1828 Md. LEXIS 32 

June, 1828, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Prince-George's County Court. On the 7th of May 1816, the plaintiff in that court, (now appellant,) sued forth a writ of scire facias on a judgment therein rendered at April term 1807, in favour of the plaintiff, against the defendant's intestate, for $ 600 damages, and $ 7 28 costs. It stated the death of the intestate, and that administration on his estate had been granted to the defendant, &c. The sheriff was commanded to give notice, &c. to the defendant, and at the return day he made return of the writ nihil. The record states that the defendant, as administratrix, voluntarily appeared in court, and a rule was laid on her to plead to the scire facias, and by Archibald Van-Horn, her attorney, she prayed the court, and obtained leave to imparl until the next term of the court. At the next term, (April 1817,) she prayed and obtained further leave of the court to imparl until the next term, for the purpose of pleading to the scire facias. At which term, (September 1817,) the plaintiff appeared, but the defendant made default, and a fiat was entered against her by default, in the usual manner. On the 13th of April 1825, the defendant moved the court, then sitting, to strike [**2]  out the judgment of fiat entered against her, and she filed in court her own affidavit, and that of T. Tyler. Her affidavit stated, "that in the fall of 1815, after taking letters of administration upon the estate of her deceased husband, and selling all his personal estate pursuant to an order of the orphans court of Prince-George's county, she removed to the District of Columbia, leaving the affairs of her administration to be settled by Major Trueman Tyler, and that she has continued to reside there ever since. That she never knew any thing of the issuing of any writs in the above suit, nor that Archibald Van-Horn, who she never employed as attorney in any case whatever, had appeared for her in the said suit, nor that any rule was laid upon her to employ new counsel in that suit, upon the death of the said Van Horn nor that any fiat had been entered against her in said suit, nor that any execution had been issued against her thereupon; but was entirely ignorant that any proceedings had been instituted in any court whatever against her in relation to the subject matter of that suit, until after suits had been instituted against her sureties in her administration bond. That she never [**3]  did in any manner assent to or acquiesce in the said fiat, but on the contrary did immediately, upon receiving notice that the said fiat had been entered against her, unite with Mackall S. Cox, one of the said sureties, (against whom a judgment had been obtained for the amount of the said fiat, upon her said administration bond, and against whom an execution had been issued upon said judgment,) in a bill of complaint filed in the county court of Prince-George's county, as a court of equity, applying for an injunction to stay proceedings at law on the said judgment. And further, that she was induced to believe that nothing had been done in the said judgment or fiat by a letter which she received from J. J. Donaldson, who was the attorney who appeared for the plaintiff, and obtained the said fiat. Which letter she herewith exhibits." The letter referred to was dated Baltimore, the 20th of September 1817, stating that he had obtained three judgments against her husband in his lifetime, which he was assured by Mr. Tyler would be paid that summer. Being under that impression when he was at September court, he called on Mr. Tyler for settlement, who said he had no funds in hand, but expected [**4]  them from her. That as it was absolutely necessary they should be immediately settled, he hoped she would not delay the promised arrangement, otherwise he must sue on her administration bond, and make her securities liable. The affidavit of T. Tyler, the agent of the defendant, stated that he gave notice to all the creditors of the deceased to present their claims, and that among those presented, and a proportion of which were paid, was the judgment, the scire facias in this case seems to revive against the defendant. That in the years 1816 and 1817, he had frequent conversations with J. J. Donaldson, the plaintiff's attorney, in relation to the said judgment and payment thereof. That he always informed the said Donaldson that there would not be a sufficiency of assets in the hands of the administratrix to pay the whole of that judgment. Nothing was said in those conversations about any suit being instituted against the said administratrix. That he never knew or heard that the suit, by which the above was obtained against the administratrix, had been, or was intended to be instituted, until he was surprised on hearing, after the judgments had been obtained, that the defendant's administration [**5]  bond had been sued, and judgments obtained thereon against her sureties. That he never knew that A. Van-Horn, esquire, had appeared for the administratrix in the said suit, nor that any rule had been laid upon her to employ new counsel.

The county court at the said term. (April 1825,) ordered that the fiat so as aforesaid rendered by default, be stricken out. From this order the plaintiff appealed to this court.  

DISPOSITION:
ORDER REVERSED.  

HEADNOTES:

To a writ of scire facias upon a judgment against an intestate, the sheriff returned nihil, when the defendant, the administratrix, according to the record of the cause, voluntarily appeared by attorney, and a rule was laid on her to plead. After several imparlances, in 1817 a fiat was entered by default. In 1825 the defendant moved the court to strike out the judgment, and filed affidavits which showed, in substance, that before the writ of scire facias issued she had removed from the county where the judgment was obtained; that she never had any knowledge of this suit until long after the fiat was entered on the scire facias, and execution sued out, nor until after it was made the foundation of proceedings against her sureties on her administration bond; nor had she ever employed the attorney, who appears on the record, to represent her; that as soon as she had notice of those proceedings, she applied for an injunction to stay proceedings at law; that the plaintiff's attorney had been paid a part of the original judgment, and was informed that there was not a sufficiency of assets to pay the whole. The county court, thereupon, ordered that the fiat by default be stricken out. On appeal--Held, that the county court had no authority under the circumstances of this case to strike out the fiat entered on the scire facias.

The appearance of an attorney, without proof of an authority derived from a defendant, does not per se invalidate a judgment.

If loss be sustained thereby, the attorney must answer in a civil action by the party injured.

Where the county court strike out a judgment under the act of November 1787, ch. 9, s. 6, they are bound to order regular continuances of the cause, from the time of the rendition of the judgment to its being stricken out, to be entered on the docket, so that the matters in dispute may be fairly brought to trial--their failure to do this, works a discontinuance of the action.

Judgments at law are not lightly to be interfered with; and it must be a strong case to induce the court to strike out a judgment of almost eight years standing.  

COUNSEL:
J. Johnson, for the Appellant, contended, 1. That the fiat against the administratrix was evidence of assets, whether that fiat was by confession or default; and that it was immaterial whether the attorney, who suffered the default, was employed or not.

2. That if the fiat was not considered conclusive evidence of assets, it was too late to move to set it aside; or at all events, that it could only be set aside on payment of costs.

On the first point, he cited Ruggles v Sherman, 14 Johns. Rep. 446. Rock v Leighton, 1 Salk. 310. 3 Bac. Ab. tit. Executors, &c. (M) 88, (note b.) Henck v Todhunter, 7 Harr. & Johns. 275. Denton v Noyes, 6 Johns. Rep. 296.

On the second point, he cited Thomas's Coke Litt. 511, (note E.) 1 Com. Dig. (new [**6]  Ed.) tit. Amendment, 603, (note a.) Devenport v Ferris, 6 Johns. Rep. 131. Dand v Barnes, 6 Taunt. 5, (1 Serg. & Low. 291.) Fletcher v Wells, 6 Taunt. 191. (1 Serg. & Low. 352.) Philips v Hawley, 6 Johns. Rep. 129.

Ashton, and Magruder, for the Appellee, cited 1 Reeves' Hist. E. L. 417. 2 Reeves' Hist. E. L. 71. Co. Litt. 259. b. Rich. Pr. 45. 1 Arch. Pr. 23, 25. 2 Arch. Pr. 8, 88. Morrice v Green, 3 Salk. 213. Darnall v Harrison, 1 Harr. & Johns. 137. Ryland v Noakes, 1 Taunt. 342. Robison v Eaton, 1 T. R. 62. Act of 1720, ch. 24. Forsyth v Marriott, 4 Bos. & Pull. 251; and the act of 1787, ch. 9, s. 6.  

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

OPINIONBY:
DORSEY 

OPINION:

 [*377]  DORSEY, J. delivered the opinion of the court. The circumstances detailed in the depositions filed in this case, were not a sufficient warrant to the court below, to strike out the judgment against the appellee. The scire facias against Fielder Dorsett's administratrix was regularly issued, to which a voluntary appearance for the defendant, was entered by Archibald Van Horn, an attorney of Prince-George's county court, and a judgment by default was rendered [**7]  against her by reason, as stated in the argument, of the death of Van Horn before the judgment term; and it is alleged, no rule was laid on the defendant to employ new counsel. The want of such a rule does not vitiate the judgment; the party has no legal right to demand it; its imposition is not the offspring of any mandate 

 [*378]  of the law, but of the courtesy of the bar, which is encouraged by the court, as tending to subserve the purposes of justice. The appearance of an attorney, without proof of an authority derived from a defendant, does not per se invalidate a judgment. If loss or injury be sustained thereby, the attorney must answer it in a civil action by the party injured. The sufficiency of his estate to do so, was admitted in the argument of the case before us; and there is no insinuation of fraud or covin.
But conceding that the circumstances under which this judgment was rendered, afford an ample justification for its being stricken out, a conclusive objection, to its being done, is the statement in the affidavit of the appellee, that she had united in an application for an injunction, (and ex necessitate rei for relief,) to the Prince-George's [**8]  county court, sitting as a court of equity, with Mackall S. Cox, one of the sureties in her administration bond, against whom a judgment and execution had been obtained, founded on the fiat and proceedings against her. Whether this proceeding in equity be still pending or finally determined against the complainants, does not appear. But in either event it is an insuperable barrier to the granting of that summary relief which she has successfully sought at the hands of the county court. The grievance complained of is one, against which the county court, on its equity bench, is competent, not to say peculiarly fitted, to relieve. The party has elected the tribunal from which she seeks redress; and there she should be left to obtain it, and not take two chances for relief--involving the appellant in a double series of litigation, and possibly obtaining, as it were, inconsistent and contradictory decisions upon the same subject.
Judgments at law are not lightly to be interfered with; and it must be a case infinitely stronger than the present to induce this court to sanction the striking out of a judgment of almost eight years standing, in virtue of which too, in due course of [**9]  law, another judgment hath been obtained by confession, and execution levied thereunder.
This court do not concur with the suggestion, that the appeal must be dismissed, because the court below, (as is contended,) have given no final judgment in the cause. By ordering the judgment to be stricken out, and giving the plaintiff no 

 [*379]  day in court, there is an end of the suit; and the parties in that proceeding have no further opportunity of litigating their rights. Even if the county court were right in striking out the judgment, (which we cannot admit,) they were bound to have ordered regular continuances of the cause to have been entered on the docket, so that the matters in dispute might have been brought fairly to trial, as directed by the act of 1787, ch. 9, s. 6. Their failure to do this works a discontinuance of the action, and thereby inflicts an injury on the plaintiff, to redress which this appeal properly lies.
But we must not be understood as predicating our reversal upon this reason; but upon the broad ground, that under the circumstances of this case, the county court were not authorised to strike out the judgment on the scire facias; and that the [**10]  fiat must remain in full force, unless relief against it be granted in equity.
ORDER REVERSED.  

42 of 44 DOCUMENTS 

OFFUTT'S Adm'rs. vs. OFFUTT.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

2 H. & G. 178; 1828 Md. LEXIS 12 

June, 1828, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Montgomery County Court. This was an action of assumpsit, in which the declaration of the plaintiffs below, (now appellants,) against the defendant, (the appellee,) contained sundry counts. Two for sundry matters and articles properly chargeable in account, as by particular accounts thereof, therewith in court exhibited; and the others were the ordinary money counts. The plaintiffs filed with their declaration two accounts--one charging the defendant as indebted to the plaintiffs' intestate, for work done, &c. commencing on the 8th of April 1816, and ending on the 6th of November 1819, amounting to $ 122 37 1/2. The other charging the defendant as indebted to George Heeter for work done, &c. commencing on the 9th of January 1808, and ending on the 14th of December 1808, amounting to £  5 19 8. This last account was assigned by Heeter to the plaintiffs' intestate on the 9th of September 1811. The defendant pleaded non assumpsit, and issue was joined.

1. At the trial the plaintiffs offered to prove to the jury, by a competent witness, the items contained in the aforegoing account filed in this cause. But the defendant objected thereto; and to show the said testimony [**2]  to be inadmissible, offered in evidence a record of an action of assumpsit brought in the said court by the same plaintiffs, against the same defendant, on the 17th of February 1821, in which an account similar to that herein first above mentioned, was exhibited with the plaintiffs' declaration in that action, except that there was an additional charge in that account of two articles, amounting to $ 23, which are omitted in the plaintiffs' first mentioned account in this action. The defendant in that action filed in court an account in bar to the claim of the plaintiffs, amounting to $ 105 30. Issue was joined on the plea of non assumpsit; and at the trial of the cause at March term 1822, the jury found a verdict in favour of the plaintiffs for the sum of $ 41 74; and as the sum so found did not exceed $ 50, judgment was rendered for the defendant for his costs. The defendant proved that the suit mentioned in the said record was between the same parties as those in this suit, and that the items in the account here produced are the same in the account which was filed in the former suit. And he insisted that the verdict and proceedings aforesaid were a bar to this suit upon the same [**3]  cause of action. Of which opinion was the Court, [Kilgour, A. J.] and accordingly refused to permit the plaintiffs to prove the items in the said account, and so instructed the jury. The plaintiffs excepted.

2. The defendant having offered in evidence the record in the former trial between the same parties, as above mentioned, the plaintiffs then claimed the amount of the said verdict, as stated in the said record, as due to them. But the court was of opinion that the said evidence was inadmissible as proof of any thing due from the defendant to the plaintiffs, upon which they could recover in this court; and so directed 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:

Where there is a full recovery, the record of it may be given in evidence on non assumpsit; and it is conclusive in bar, if the subject matter in dispute has been before decided on by a court of competent jurisdiction, between the same parties.

The record of an action of assumpsit between the same parties, in which the jury assessed the plaintiff's damages at a less sum than $ 50, and the court, for want of jurisdiction, gave judgment for the defendant, treating the verdict as a nullity, is no evidence of the former recovery of the debt due from the defendant to the plaintiff, nor can it operate as a bar in another action for the same debt.

A second suit brought on the same cause of action, cannot be sustained by the verdict in the former suit, where the sum ascertained by the jury was below the jurisdiction of the court.  

COUNSEL:
Z. Magruder, for the Appellants. On the first bill of exceptions, he contended, 1. That the judgment given in evidence was only a judgment of non pros, and, therefore, did not decide any matter; and was also void, or could have no operation, as the court had no jurisdiction of the cause. 2. That admitting the judgment to be effectual for any purpose, it could only operate to show the amount of what [**4]  was due upon the matter litigated in that action, and could not operate as a bar to the second action on the issue there joined. He cited 1 Phill Evid. 234, (note.) Borden v Fitch, 15 Johns. Rep. 121.

On the second bill of exceptions, he insisted that the instruction of the court below was erroneous, because the plaintiffs, at all events, upon the issue joined on non assumpsit, were entitled to give in evidence, and claim the amount mentioned in the verdict, and connect it with other matters not litigated in the first action, so as to support the jurisdiction of the court; and although the jury were sworn to inquire into the existence of a promise or contract, the direction of the court was such as to induce them to find a verdict directly contrary to the evidence produced by the defendant himself. He cited 1 Phill. Evid. 235. Soddon v Tutop, 6 T. R. 607.

No Counsel appeared for the Appellee.  

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

OPINIONBY:
EARLE 

OPINION:

 [*180]  EARLE, J. delivered the opinion of the Court. These appellants were plaintiffs in Montgomery county court, and instituted their suit on a long account for blacksmith's work, commencing [**5]  the 8th of April 1816, and ending the 6th of November 1819, and amounting to $ 122 37 1/2. To this they tacked a small account of £  5 19 8, assigned to their intestate, and for the whole declared in various ways, and among others, for an account brought into court with their declaration.

 [*181]  The defendant pleaded non assumpsit, and when on the trial, the plaintiffs produced their account, and offered to prove the several items of it, the defendant objected; and to show the testimony inadmissible, he presented a record of Montgomery county court, of a suit between the same parties, for the account of $ 122 37 1/2, and insisted it was a bar to the recovery in this case; and fully demonstrated that the evidence offered by the plaintiffs was not admissible. The court were of this opinion, and refused to permit the plaintiffs to prove the items of their account. The record produced was the record of a suit between the same parties, and on the same account of $ 122 37 1/2, with two additional articles to the amount of about $ 23; opposed to which was an account in bar of Osgood Offutt's against James Offutt of William, which reduced the plaintiffs' verdict to [**6]  $ 41 74, a sum below the jurisdiction of the court. For want of jurisdiction, no judgment was rendered on the verdict; but the judgment rendered was for the defendant, for his costs. This is the substance of the first bill of exceptions; and it is made a question, whether the record of this proceeding, thus conducted, and thus eventuating, is a bar to a recovery in the present action, or can be given in evidence as such?
It appears to us, that this record was offered prematurely, before the plaintiffs had given proof of the items of their accounts, and more particularly so, as the tacked account had not been an object of controversy in the former suit. But if the record had been offered in evidence at a proper time, we are of opinion that it could not operate as a bar to the present action, and could not be received in evidence as such. Where there is a full recovery, the record of it may be given in evidence on non assumpsit, and it is conclusive in bar, if the subject matter in dispute has been before decided on by a court of competent jurisdiction, between the same parties. In the case before us, there was no recovery had by the plaintiffs in the former suit, because  [**7]  Montgomery county court wanted jurisdiction to give them a judgment. The jury ascertained the sum of their damages, but the ascertainment is of no avail, and as to them the verdict is a nullity. It cannot be made the foundation of a further claim against the defendant; and unsupported by a judgment, 

 [*182]  it cannot, under any circumstances, be made evidence before a jury. It certainly will not answer the purpose for which it was produced by the defendant. It will not witness a former recovery of the debt due from the defendant to the plaintiffs' intestate.
The opinion of the court below on the other bill of exceptions, is a correct one. It is supported by the case of Read & Miller v. Hannan, in which there was a nisi affirmance in this court at December term 1807. This case we have examined, and approve of the decision therein of Baltimore county court. It establishes the position, that a second suit brought on the same cause of action cannot be sustained by a verdict in the former suit, where the sum ascertained by the jury is below the jurisdiction of the court.
JUDGMENT REVERSED, AND PROCEDENDO AWARDED.  

43 of 44 DOCUMENTS 

STATE use OYSTER vs. ANNAN.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

1 G. & J. 450; 1829 Md. LEXIS 37 

December, 1829, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Frederick County Court. This was an action of debt on a Trustee's bond, under a decree of the Court of Chancery, brought by the appellant on the 18th of February, 1820, pleas general and special performance. The following statement of facts was agreed upon by the parties. "It is admitted the defendant regularly made and executed the writing obligatory mentioned in the declaration in the following words, to wit:" Know all men by these presents, that we Robert L. Annan, William Long, Jacob Winter and Philip Nunnamaker, all of Frederick County and State of Maryland, are held and firmly bound unto the said State of Maryland, in the full and just sum of four thousand pounds current money, to be paid to the said State, to the payment whereof we bind ourselves, our heirs, executors and administrators, jointly and severally, firmly by these presents, sealed with our seals and dated the 28th day of January, 1808. Whereas by a decree, of the high Court of Chancery passed at December term, 1807, the above named, Robert L. Annan and William Long, were appointed trustees to sell the real estate of Solomon Kephart late of Frederick County, deceased, for the payment of his debts, as [**2]  by the said decree, reference being thereto had will appear; now the condition of the above obligation is such, that if the said Robert L. Annan and William Long, do and shall well and faithfully perform the trust reposed in them by the said decree, or to be reposed in them by any future order or decree in the premises; then the obligation to be void, &c.

"That before the making the said writing obligatory to wit, on the 28th day of December in the year of our Lord one thousand eight hundred and seven, it was by the honourable the Chancellor of the State of Maryland on the petition of the creditors of a certain Solomon Kephart, deceased, upon a bill filed by them against his heirs at law, adjudged, ordered and decreed, that the real estate of the said Solomon Kephart, should be sold to pay his debts. And in the said decree, Robert L. Annan the defendant in this cause, and a certain William Long, were appointed trustees for the purpose of selling the real estate of the said Solomon Kephart, deceased, to raise money to pay his debts, that the said Robert L. Annan and William Long, accepted the said trust, and executed and made the writing obligatory aforesaid for their trust bond,  [**3]  which was filed in the Chancery Court and approved by the Chancellor, that in the said decree the said Robert L. Annan and William Long, were directed to proceed to sell the said real estate of the said Solomon Kephart, deceased, and were also directed to bring the money arising from the said sale or sales, under the said decree, into the Chancery Court, to be applied under the directions of the Chancellor, or pay it away under the direction of the said Chancellor, after taking out the commission to be allowed the trustees, and the costs of the suit; that the said defendant and the said William Long, on the 7th day of March, 1808, made sale of part of the said real estate of the said Solomon Kephart, deceased, amounting to $ 1437, and made a report thereof to the Chancellor. That upon the petition of the creditors of the said Solomon Kephart, being again presented to the Chancellor, he did by another order and decree, direct the said Robert L. Annan and the said William Long, to make a further report of their proceedings, and of the situation of the said real estate of the said Solomon Kephart; that the said Robert L. Annan and William Long, in obedience to the last mentioned order [**4]  and decree of the Chancery Court, did on the 8th day of April, 1815, after the copy of the said order and petition was served on them, sell the balance of the real estate of the said Solomon Kephart, and made report thereof to the Chancery Court, amounting to the sum of $ 952. That the said Robert L. Annan and William Long, received the whole purchase money from the purchasers, both at the first and second sale, but never brought any part of it into the Chancery Court, and never paid any of it away under the direction of the Chancellor. That the Chancellor did regularly order and direct the auditor of the Chancery Court, to state and report an account between the estate of the said Solomon Kephart and the said Robert L. Annan, and the said William Long; that the auditor of the said court in obedience to the said order of the Chancellor, did state an account as aforesaid, and did report the same to the Chancellor, in which account after taking out the commission to the trustees, and their part of all expenses in both sales, and the costs of the Chancery Court, he did distribute the balance to the creditors according to their respective claims, which account, distribution and statement,  [**5]  was afterwards confirmed, and the proceeds of the sales of the said real estate applied according to the statement and distribution made by the said auditor, as appears by exhibit C, made a part of this statement and contained in the following words viz."

Here follows the auditor's report, shewing the claim of Jacob Oyster, marked No. 3, to amount to $ 346 36, his proportion as distributed by the auditor, amounting to $ 48 88, and the Chancellor's order thereon, confirming the same and directing the proceeds to be applied accordingly, dated January 18th, 1820.

"That the said auditor in distributing the proceeds of the sales of the real estate of the said Solomon Kephart, deceased, has given to the plaintiff in this cause as one of the creditors of the said Solomon Kephart, as his dividend, the sum of $ 48 88, as appears in the paper marked C, and the Chancellor by his said order has directed the defendant Robert L. Annan, and also the said William Long, trustees as aforesaid, to pay to the plaintiff in this action the said sum of $ 48 88, as aforesaid, with interest in proportion as it has been or may be received. That after all the proceedings aforesaid, the plaintiff in [**6]  this action brought suit in the name of the State of Maryland for his use against the said Robert L. Annan, the defendant, on the said bond given by him as one of the said trustees for the faithful performance of his trust, to recover his distributive share of the proceeds of the sale of the real estate of the said Solomon Kephart, with interest thereon as aforesaid. It is admitted that no part of the money due to the plaintiff as aforesaid has been paid by the defendant or any other person. It is admitted that the Chancellor of Maryland, at the time he passed said order on exhibit C, had full and competent authority to pass said order, and the same was legally passed by him. If upon this statement of facts the court shall be of opinion that the plaintiff is entitled to recover, judgment is to be entered up for the plaintiff for the penalty of the bond to be released on the payment of the sum of $ 48 88, with interest in proportion as it has been or may be received, and costs of this suit. If the court shall be of opinion that the plaintiff is not entitled to recover, the judgment of non pros is to be entered. Both plaintiff and defendant reserves the right of taking an appeal to the [**7]  Court of Appeals upon the judgment of the court."

On the above statement, the County Court gave judgment for the defendant, and the plaintiff appealed to this court.

The case was submitted on notes.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

The bond of a Trustee appointed by the Chancellor to sell the real estate of a deceased person, for the payment of his debts, is not liable to be put in suit, after the Trustee has sold the deceased's property, and received the money therefor, upon the order of the Chancellor distributing such proceeds among the creditors, without notice to the Trustee of such distribution.  

COUNSEL:
Boyle and Pigman for the appellant. The only point in the cause, is whether the plaintiff was bound to give notice to the defendant, of the Chancellor's order to pay the money, and demand it, before he can maintain his action on the trustees bond?

The case stands upon a statement of facts agreed to by the plaintiff and defendant. This case will settle a very important principle, and rule of practice, as to the right of suing on administration bonds.

The bond will be found in the record, and the courts attention is called to the condition. It is the usual condition for the performance of duties imposed by the original decree, or that may be put upon the trustees by any future order by the Chancellor. The condition does not provide that notice shall be first given of the decree, or order, before action shall be maintained. It was therefore no part of the undertaking or contract, that notice should be given to enable a distributee to maintain his [**8]  action. The Chancellor's order does not require notice to be given at all--what then makes notice necessary to enable the plaintiff to maintain his suit? There is no law requiring it; you must amplify the law, the contract, and the order of the Chancellor, before you can require any further notice of the cause of action, than was given by the writ of capias which originally issued in the case. The rule as to notice to be given by one party to another before action, is this; where the thing is more in the knowledge of the plaintiff than defendant, plaintiff is bound to give notice, but where each party have the same knowledge, notice is not necessary; for the cases on this point, the court is referred to 1 Chitty Pleadings, 320. Now the dispute in this cause is between trustees, officers appointed by the Chancellor, and one of the distributees. The Chancellor orders the auditor to state an account current between the trustees, and the estate of Solomon Kephart. This the auditor does, and after taking out costs, &c. distributes the money among the creditors, and reports to the Chancellor, who confirms his report. The plaintiff sees the sum of $ 48 88, distributed to him, as one of the [**9]  creditors, he knows by enquiring, and the defendant might have known the same, by adopting the same means. It is true that it is usual, when the Chancellor intends to bring an individual into contempt for disobeying his order, to insert a provision to give notice by serving the order. But the order in this case was to enable the distributees to sue the bond if the money was not paid. Cases may be found in England where notice is necessary to bring the party into contempt for disobedience, as for not bringing money into court, &c. But our form of trustees bond is peculiar, and the rights of the parties are defined in the condition, and the Act of Assembly under which it is given.

F. A. Schley for appellee.

In this case the defendant and William Long were appointed by the Chancellor, trustees to sell the real estate of Solomon Kephart to pay his debts, and they executed their joint and several bonds with two securities, conditioned to perform the trust reposed in them by the decree, or to be reposed in them by any future decree or order in the premises. The decree directs the trustees to bring the money into court arising from the sale, "or to pay it away under the direction [**10]  of the Chancellor." The land was sold in 1815. The creditors being numerous, eighty-two in number, were litigating their claims in Chancery for years, and did not get them adjusted until 1820. On the 18th January, 1820, the auditor made his report, and it was finally ratified, and the trustees ordered to pay over the proceeds of sale accordingly. Of this order the trustees had no notice, whatever, they residing twenty miles beyond Frederick, and the order passed at Annapolis by the procurement of the counsel for the creditors, as soon as the order was passed, the counsel for the creditors to the number of eight or ten, got a copy of the auditor's report, and without informing the trustees of it, or affording them any opportunity to discharge their trust, he immediately issued four separate writs, in each case against the two trustees and their two securities, on behalf of each of these eight or ten claimants, making from thirty-five to forty suits, to recover the amount of these claims. The writs were issued on the 20th February, 1820. No notice was given to the trustees of the Chancellor's order, and no demand made upon them for the money. The service of the writs was the first notice [**11]  they had that the plaintiffs were even creditors of Kephart, whose estate they had sold. Nor did they know this until they went to the plaintiff's counsel, to see a copy of the audit.

The question is, were the trustees entitled to notice from, or a demand by the creditors before they were liable to be sued? Or has the creditor the right, immediately on the ratification of the sale to institute a suit on the trustees bond, without any notice or demand, or any opportunity afforded them to pay without being sued?

This question is res integra in Maryland. The court, and that too of the last resort, are now, for the first time called on to settle the law in this State, as to the liability of trustees appointed by the Chancellor. It is an important question, as its decision will prescribe the duties, and fix the liabilities of a numerous class of agents, which the interests of creditors, and the convenience of our courts make necessary.

The sale of lands by trustees in the country, instead of a sale in the Chancery office, by a master in Chancery, is a great convenience and of great advantage to the parties concerned. Instead of being made in the Chancery office as in England [**12]  and New-York, it is made on, or in the immediate neighbourhood of the property, where it is best known, and bidders most likely to attend. The court should therefore be cautious to establish no rule, which by its oppressive operation would be likely to deter persons from becoming trustees. "It is a rule of law founded on the first principles of natural justice, that no judgment shall be pronounced against one who has not had notice given of the proceedings, and had an opportunity to defend himself." 2 Stark. Ev. 977. "Trustees acting bona fide are always treated with liberality and indulgence." 4 Johns. Ch. Rep. 628, 629. Would the court establish a rule under which a trustee could by no ordinary and practicable diligence, and with fair bona fide intentions to execute his trust, protect himself from costs and losses which would be ruinous?

If such a rule is established, who would assume the unreasonable and ruinous responsibility of a trustee? Creditors frequently become restless and querulous, when they can not get their claims adjusted in Chancery, and charge the delay on the trustee, although he has nothing to do with the adjustment of the claims. It is the duty and the act [**13]  of the creditors. The adjustment as to the trustee, is, res inter alias acta. He is no party, and can in no way interfere. In this state of dissatisfaction all might sue the trustee, as soon as the order was passed, and ruin him by costs without affording him the opportunity to comply with the order although ready, willing and anxious. This would be strange indulgence and tenderness to trustees|| In England as in this State, a Court of Chancery enforces its orders, and decrees, by attachment, &c. The party, however, must first be in contempt, but he cannot be in contempt, until he refuses to perform the order or decree, and he cannot refuse until he is called on to perform. "And this must always be done by serving a copy of the order or decree on him, to give him the opportunity to perform." Wyatt's Prac. Reg. 298. Hindes' Prac. 494. 1 Harr. Ch. 443. 2 Harr. Ch. 141.

This rule is founded on common sense and common justice. Money paid into court, cannot be withdrawn by the person entitled, unless under an order for that purpose, which must be served on the accountant general. Wyatt, 284. 2 Harr. Ch. Prac. 142. In Maryland, the money if deposited in bank, could not be drawn out [**14]  by a creditor or person entitled, except by an application to the Chancellor, who would order a check on the bank, or rather, order the cashier of the bank to pay the money. This order or check, must be served or presented to the cashier, and is notice to the bank.

If ready and willing to pay, he ought to have the opportunity, afforded him. Sheer justice demands this, to say nothing about equity. The party or creditor has two remedies; he may either proceed by way of attachment against the trustee alone--or he may sue on the bond and include the securities.

In either case, however, the trustee must be in default. He must have done that which would amount to a refusal to obey the court's order, to a contempt of the court. If a suit is brought, there must be an averment in the pleadings that the trustee had notice of the Chancellor's order. See the pleadings in a similar case, in 3d Johnson's Cases, 53, The People vs. Bryan.

In all cases of a similar kind found in the books, notice of the order is averred, either in the declaration, or replication.

An attorney, who is an officer of the court, cannot be sued for money in his hands as attorney, until a demand is made [**15]  upon him, and he has thus an opportunity afforded him to pay out. 5 Cowen. Rep. 376. And in this case he is called a trustee by the court. He holds the money in his fiduciary character. Can the trustee be considered as any thing more than an agent of the court? The Court of Chancery have so decided, and have said, that in the sale of lands, he is the mere agent of the court, and the contract not binding on the court until they have ratified it. He is then nothing more than the agent to make the sale, and the agent to pay away the money. If so, then he is protected by the settled principles of law, that "an agent or factor selling goods consigned to him, cannot be sued, until he is ordered how he is to pay it, to whom he is to pay it, and has refused or neglected. 10 Johns. Rep. 285. See the precedent of a declaration in such cases, 3 Chitty Plea. 178, 179. If goods are consigned to a factor to sell on commission, there must be a demand by the principal for the money of those sold, and for the goods unsold. And an action does not lie against him for not accounting, till after a demand made for an account. 1 Taunt. 572. The condition of the bond is to perform the trust reposed in them,  [**16]  or to be reposed in them by any future order or decree--the decree to pay away the money arising from the sale, under the direction of the Chancellor. How can the trustees know what the further order of the court is, or what are their directions until such order or directions are shewn to them, and that too by the parties entitled to the benefit of the order, and competent to receive and release. The trustees do not stand in the relation of debtors and creditors. They are the mere agents of the court. The hands by which the court for its own convenience, and the convenience, and very great convenience too of creditors, pay away funds under its controul. As before observed, the adjustment of the creditors claim, is, as to them, "res inter alias acta." They are not parties and can in no way interfere. They cannot even know who are the claimants, until the audit is closed and ratified.

The argumentum ab inconvenienti, applies with resistless force; for if the trustees are to be regarded as debtors to the creditors, then they must seek out the creditors. They must go to every county in the State, or every state in the Union, nay, to Europe itself, if the creditors are thus dispersed,  [**17]  to pay them; otherwise to be subjected to suits and costs. Costs that would be absolute ruin to them. In this case, we see the ruinous consequences which might be visited upon these trustees, although ready and willing to pay.

There are eighty-two claims. Each claimant may bring four suits, the bond being several. This would make the aggregate of three hundred and twenty-eight suits, which at five dollars and fifteen cents to each, would produce an aggregate of costs equal to one thousand six hundred and ninety-eight dollars and twenty cents|| And this too is the lowest amount of costs the trustees could escape with, if they were to go to each creditor and pay them as soon as the writs were served. The court will see that the claim of Jacob Eversall in only $ 16 10. John Sawyer, $ 19 12, for which suits were brought, and if the trustees are compelled to pay the costs of these suits, they will amount to more than the principal, that is, the costs in each case will amount to $ 22 60.

There is one of the claimants, named John Kennedy. This claim amounts to nineteen cents, now, can it be possible that the trustees could be compelled to ride over the State to find Mr. Kennedy [**18]  to pay him these nineteen cents, or be liable to be sued with four writs, and made to pay $ 22 60 costs. Impossible|

The whole net amount of sales is only $ 2075. Yet, if all the claimants had sued, as soon as the audit was ratified, the trustees might have been compelled according to the plaintiff's idea, to pay nearly the whole of this sum in costs. If the trustees are not entitled to notice, to the service of a copy of the audit, or the Chancellor's order, they cannot protect themselves from these ruinous consequences, no, not even though they take their seats at the Chancellor's elbow, and wait there for years, to know when the order will be passed; for if they go to pay a creditor in Baltimore, Finley and Taylor, for instance, they may be sued while they are in the act of paying there, by the present very vigilant plaintiffs in Frederick. No willingness, no diligence, no readiness to pay can save them; it is morally impossible for them to protect themselves from ruinous costs, if the creditors are so disposed, and yet, I have always understood it to be a maxim of the law of common sense and common justice, that lex neminem cogit ad impossibilia. If it be said that trustees [**19]  may relieve themselves from these difficulties, these ruinous consequences, by paying the money into court. The answer is, that this would produce such great inconvenience to creditors, that all the benefit arising to creditors and others, from trustees residing near them and near the property sold, would be lost. The creditors, though residing in Alleghany or Worcester, would have, each one, to go to Annapolis to the Chancellor for a check or order, for the amount of his claim, however small. I cannot believe the court will establish a rule producing such serious inconveniences to suitors and claimants, when a rule obviating every inconvenience to all parties, and based upon reason, equity, and sheer justice, is equally in their power. Surely a creditor ought to be satisfied, and can have no right to complain if he is paid his money when he asks for it. Surely a trustee ought to be protected, both by courts of law and courts of equity--for they are both courts of justice--when he has acted bona fide, when he is ready, willing and anxious to discharge his trust; when he says, present me the order that I may know what it is, and to whom I am to pay, and I am ready to perform--the money [**20]  is in my pocket, and has been there for some time waiting for this order. The condition of the bond is, to perform the trust reposed in them. The court, in ascertaining whether they have violated the condition by not performing the trust, will give to their acts a reasonable construction. They will, before they will suffer a suit to be sustained, ascertain and be satisfied that the trustees have been in default, and although they do not, being a court of law, proceed by way of attachment, yet, as the Chancellor would not have granted an attachment until the trustees were in default, and he would never consider them in default for a disobedience to his order, until they know what that order was, so a court of law will construe the trust, and ascertain the duties and default of the trustees by the same rules of reason and justice, and will not consider the acts of the trustees as a breach of the trust, so as to subject them and their securities to suits on the bond for the penalty, unless on the same evidence, if they were sitting as Chancellors, they would grant an attachment. The court in ascertaining the duties and obligations of parties, are always governed by rules of justice and [**21]  reason. Thus when a party endorses a note, he does not specify in his contract that he shall have notice of the non-payment by the drawer, before he will be bound, yet the courts in fixing his liability, in construing his contract have said, it is reasonable that he should have notice, and if the holder does not give it to him, he is not bound by his endorsement--he is not liable to be sued. So in the case of notes and accounts assigned to another in payment of debts, it has been held by the courts, that the assignee must use due diligence in the collection of them, or the assignor is not answerable on the original, because they say it is reasonable that such diligence should be used for the protection of the assignor. And so in many other analagous cases, the court in fixing liability, and ascertaining and determining what shall constitute a breach of duty, and what not, are influenced by the principles of reason and justice. The trustees in this case only ask to have their duties ascertained by these principles, believing as they do, that they will not convict them of a breach of trust in the non-performance of an order, the existence of which they never knew, and the performance [**22]  of which they never refused, and the knowledge of which they could not have procured by any ordinary diligence, to save themselves from the clouds of suits with which they are covered, every one of which they would have prevented, if the creditors had only called on them for their money, or given them notice that the audit was made out.

The court are to say what were the duties of these trustees, in the proper discharge of their trust, what it was reasonable, and right, and equitable to expect of them. They are, by their bond, to perform the trust reposed in them. Did this trust require them, as soon as the audit was made out, to take it in one hand and the trust fund in the other, and ride through the country, State, or United States, as the creditors might be dispersed, to pay each one his claim? If it did, then they are liable to this suit, and might be sued in one hour after the Chancellor's order, by one hundred creditors, if there were so many, and totally ruined, uno flatu. But if, on the contrary, the trustees are entitled to notice of the order; if they are entitled to an opportunity to pay, by having the order shewn to them by the person entitled to receive, or his agent [**23]  or attorney, who may be authorised to give a receipt or release. If they are to be as much favored as the bank, which holds the funds of the Court of Chancery, if they are not to be required to do more than to use ordinary diligence, to act bona fide, and to be ready and willing to pay whenever called on, or whenever the courts order, which they are to obey, is shewn to them by the party entitled to receive and release. If, in truth, they are not to be required to perform impossibilities, then they are not liable to the suits which have been brought against them, of which the present is one.  

JUDGES:
EARLE, J. delivered the opinion of the Court.  

OPINIONBY:
EARLE 

OPINION:

 [*462]  EARLE, J. delivered the opinion of the Court.
This suit was brought by a creditor on the bond of a trustee appointed by the Chancellor, to sell the real estate of a deceased person for the payment of his debts. The statement agreed on between the parties gives a full account of the proceedings of the trustee in Chancery, from the acceptance of his trust, to the confirmed report of his sale, and the Chancellor's order of distribution of proceeds among the creditors. The action was instituted within a month after the order,  [**24]  and the complaint is that the plaintiff's proportion of the avails of the sale was sought without giving to the defendant, any previous notice of the final proceedings of the Chancellor.
We have given to this case a further consideration, and after an examination of the authorities, we are inclined to think our first impressions of it were not correct. The trustee as to the suit is not in the situation of a common debtor, who knows his liability, and whose business it is to look to a compliance with his engagement; nor is his predicament like that of an executor or administrator, who represents the deceased testator, or intestate, in all and each of his contracts, and to whom the creditors individually are to exhibit their claims for settlement. The creditors are known to the trustee but through the medium of the Court of Chancery, where they file their respective demands to be adjusted by the auditor, and where disputes among them are disposed of by the Chancellor, who finally determines what proportion of the sum of money reported, is to be paid to each of them. This proceeding as to the trustee, is res inter alios acta, and it is but reasonable that when it terminates he shall [**25]  be notified of the result, before any steps are taken against him, either by attachment, or by action on his trustees bond, against 

 [*463]  him, and his sureties. In the case of an order for distribution and payment, similar to this, to sustain the plaintiff's suit, it appears to us therefore, that he ought to aver and prove a service of the order on the trustee, and a demand of payment of the sum specified therein; and that without this notice so averred in the proceedings, an action on the trustees bond cannot be maintained. Vid. 3 Johns. Cas. 53.
The court mean to confine this decision to an order for distribution and payment by the Chancellor, and with this understanding the judgment of the court below is affirmed.
JUDGMENT AFFIRMED.  

44 of 44 DOCUMENTS 

HAGTHORP et ux. et al. vs. HOOK'S Adm'rs D. B. N.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

1 G. & J. 270; 1829 Md. LEXIS 23 

December, 1829, Decided 

PRIOR HISTORY:
 [**1]   This was an appeal from Chancery. The bill was filed by James Neale, administrator de bonis non of Anthony Hook, and claimed payment for certain personal, and an account of the rents and profits of certain leasehold property, which the said Anthony in his life time had conveyed in trust to John Hook, deceased, and which was alleged to be in the possession of the representatives of John Hook, viz. Edward Hagthorp and wife, and other defendants, purchasers from the said John or his representatives. The complainant claimed the property for the purpose of distributing it according to law, and charged the defendants with confederating to prevent that object. Answers were filed, testimony taken, and the cause set down for hearing. But as the merits of the case were not reviewed by the appellate court, the appeal having been dismissed as prematurely taken, on the motion of the appellees; it is deemed unnecessary to publish more than this brief notice of the proceedings, and to refer to the opinion of the chancellor which follows for the material facts of the cause, and to which his opinion is applied.

BLAND, Chancellor, December Term, 1826.

This case standing ready for hearing,  [**2]  and the counsel on both sides having been fully heard, the proceedings were read and considered.

This suit is brought by James Neale, alone, as administrator de bonis non of the late Anthony Hook: and, from the pleadings and proofs, it appears, that the intestate, Anthony Hook, died in June, 1798: that in the month following, administration on his goods, chattels and credits, was granted to his son, John Hook, who died in September, 1800: that in the month of November following, administration de bonis non of the personal estate of the late Anthony, was committed to his widow, Mary Hook; who died sometime after the year 1804; and, that on the 5th of April, 1820, administration de bonis non of all the goods, chattels and credits of the late Anthony, was granted to James Neale; who, as such, on the 15th of December following, instituted this suit.

According to the law of England, an administrator, de bonis non, cannot call the representatives of the previous deceased administrator of his intestate to account, for any property of the intestate, that such predecessor may have converted or wasted; nor can he claim or recover any thing but those goods, chattels, and credits of [**3]  his intestate, which remain in specie, and are capable of being clearly and distinctly designated and distinguished as the property of his intestate. 3 Bac. Abr. 19, 20. Hence, it is, that, in a Court of Equity particularly, an executor or administrator, who is there considered as a trustee for the creditors, legatees, and next of kin of the deceased, is expected and required to preserve the property of the deceased apart from his own, and by itself to give it, as is said, an ear mark, that it may be always known and readily traced to any one, into whose hands it may happen to fall: and if he does so the court will do every thing that can be done to protect and assist him. 3 Mer. 42, Salk. 306.

According to our provincial testamentary system, an administrator de bonis non might, under certain circumstances, have had his predecessor cited before the commissary and compelled to account. 1715, ch. 39, sec. 3. Dep. Com. Guide, 55, 57. But at present, the only remedy against an administrator or his representatives, for any waste, or misapplication of the effects of the deceased, is, by an action at law upon his administration bond by any one interested. For, it is expressly [**4]  declared by our present law, that the authority conferred, by letters of administration de bonis non, shall be to administer all things described in the act as assets, not converted into money, and not distributed or delivered, or retained by the former executor or administrator, under the direction of the Orphan's Court, 1798, No. 101, ch. 14, sec. 2.

Hence, it follows, that this plaintiff is incompetent to demand, in the representative character, in which he sues, any thing, but those goods, chattels and credits, which his letters authorize him to administer; that is, the chattels real and personal property of his intestate, which remain undisposed of by either of the previous administrators, John or Mary; or which have been, and continue to be held unaccounted for by any one, as trustee or agent of the late Anthony Hook, his intestate. The statements and allegations of these very obscure original and amended bills, must, therefore, be taken subject to the limited rights of the representative character of this plaintiff.

It appears, from the pleadings, in this cause, that some of the next of kin, and distributees of the late Anthony Hook, under an impression, that the chattels [**5]  real of the deceased, had vested absolutely in them, have disposed of, or attempted to make a final disposition of the whole, as if such chattels had been immediately cast into their hands by the mere operation of law: in like manner as the real estate of an intestate, is at once cast upon his heirs. If these next of kin acquired, at once, by the act of the law alone, a legal right to these chattels real, by virtue of which they might, either concurrently or independently of the administrator, dispose of them, then, as the joint or independent holders of the property in controversy, they ought to be made parties to this bill; and if they have acquired such a legal right, and have actually disposed of these chattels, then, it is no less evident, that all claim against these defendants is, so far, entirely at an end. In these points of view the allegations of the bill, in relation to these next of kin, of the intestate, present some important preliminary enquiries.

The real estate of an intestate, devolves at once and entirely, upon his heirs, by the mere act of the law itself. But his personal property is, by the law itself, cast upon no one; nor does the legal ownership of it [**6]  vest, immediately, in any person. Because, such legal title can only vest in an administrator; who alone, is considered as the legal representative of the intestate, as to his chattels real, and personal estate. In the interval of time, between the death of the intestate and the granting of administration, the legal right to such personal property is in suspense, or in the keeping of the law, and vested in no one. During that interval, there is no person who can sue or be sued for it; and, hence, it has been held, that a person who had, after the death of the intestate, obtained possession of his personal property, could not have it quieted or matured into a right, by the lapse of any length of time, even as much as forty years uninterrupted possession, before the granting of letters of administration; because, the statute of limitations could not be allowed to operate at all, until the legal title was vested in some one; and there was a person lawfully clothed, with a capacity to sue for, hold and dispose of such property, 4 Bac. Abr. 479, Salk. 421.

Our statute of distributions, like that of England, 3 Bac. Abr. 72, directs the goods, chattels and credits of those, who die intestate,  [**7]  to be committed to an administrator, whose powers and duties are prescribed. He has a vested interest in the personal estate of the deceased, 1 P. Will. 43: and is directed to collect and take the whole of it into his possession, which, or the proceeds of the sales thereof, he is, in the first place, to apply to the satisfaction of all the debts due from the intestate, and then, but not until then, he is to distribute the surplus among the next of kin of the deceased. In the construction of this statute, it has been held, that although the creditors of the deceased are the first and special objects of its regard; yet, that the next of kin, among whom the surplus is to be distributed, take an interest which vests in them, by operation of law immediately. It is considered as a species of chose in action of an indefinite value: in nature of a present debt, of an unascertained amount payable at a future day, 3 Mod. 59. 1 Show. 2, 25. 2 Show. 407. Pre. Cha. 21. 1 P. Will. 380. 4 Ves. 665. This interest vests in those who are the next of kin of the deceased at the time of his death: not, however, in exclusion of [**8]  a posthumous child, who is regarded as a then living though unborn distributee, and therefore, should any of them die before the distribution of the surplus is actually made, his share will not be sunk into the estate of the intestate: but go to his own legal representatives in like manner as his other personal property, Dep. Com. G. 114. 2 P. Will. 446.

Hence, it is clear, that in no case, nor under any circumstances, can any one as next of kin of the intestate, rightfully and legally make title to, or obtain possession of his distributive share, but through and from the administrator: who, in equity, is regarded as a trustee for creditors and the next of kin; and as such may, in Chancery, be called to account by all or any of them, 1 H. & I. 151. 5 Ves. 743. And every one who takes possession of personal property of an intestate, after his decease, may be sued at law by a creditor as an executor de son tort, and charged accordingly; and in equity, he will be considered as a trustee, and held accountable to the administrator, no matter how long he may have had possession, before the administration was granted. 2 Rand. Rep. 397. 2 Desan. 232. The [**9]  utility and necessity of having all the personal estate of a deceased, placed in the hands of an administrator, and the principle of law that neither a creditor, nor a distributee of an intestate could obtain any right to the personal estate of the deceased in any other manner, than from an administrator, has been very strongly recognized by the legislature more than a century past.

By the act of 1719, ch. 14, sec. 7, it is declared, that many widows, or others having the deceased's effects in their hands, and right to the administration thereof, designedly suffer other persons to administer, whose mouths are easily stopped, with part of the estate's being delivered to them, and bring only such part of the appraisement to the great dishonor of the deceased, and deceit of the living; for prevention whereof, as well as of frequent tedious suits, for the detecting such concealments, it is enacted, that the court may, in a summary way, cite such persons before it, and examine, and decide on the matter. Here the distributees, the widow and others, having a right to the administration, who are the next of kin, are specially designated, and it is expressly declared, that they shall not [**10]  retain, or hold any of the personal estate of the deceased: and if they do conceal any of it, they are made liable in a summary way as wrong doers.

If the law were otherwise; and if each creditor, and every one next of kin, were allowed to help himself, to what he thought his due; to seize upon, and, in any manner by his own act alone, acquire a legal right to the personal property of the intestate; the greatest confusion would ensue, and the most monstrous frauds might be perpetrated; no letters of administration would be taken out, in any case; but on the death of every one who had left any personal estate, worth contending for, a disorderly scramble would take place; and those residents at a distance, infants, and all others who were unable to take care of their own interests, would be openly and wantonly defrauded, as this venerable act declares, "to the great dishonor of the dead and deceit of the living." Such a course could not be tolerated in any shape or for an instant.

Hence, the indispensable necessity in all cases of a regular administration, and of compelling all, as well creditors, as next of kin, to resort for the payment of their claims and distributive portions,  [**11]  to an administrator. In this case, it is not pretended, that these next of kin of Anthony Hook, obtained any thing, any right whatever from his administrators; consequently, having derived no right from either of the administrators; and none having been cast upon them by mere operation of law: they never had the power, in any manner, legally to dispose of any of the personal estate of the deceased; or to do any act which could at all affect the rights of the present plaintiff.

Leave was asked and obtained on the 7th of February, 1823, to make James Hook, the son of the late John Hook, a defendant; who, on the same day, filed his answer to the amended bill; and in a kind of amended or duplicate bill, filed on the 23d of July, 1824, James Hook, is once incidentally spoken of as a defendant; no process was ever prayed against him; but by an agreement, filed on the 4th of November, 1826, he is admitted to be a party defendant. This person is no otherwise noticed in the proceedings; no charge, whatever, has been made against him; nor does it appear that he can, in any degree, be made liable for any part of the subject in controversy; either in his individual capacity, or as heir, or [**12]  next of kin of his father, the late John Hook, or of his grandfather the late Anthony Hook. The presence of this defendant, James Hook, it appears to be in no way necessary; and, therefore, I shall, for the present, take no further notice of him.

The bills, through a considerable portion of them, seem to consider the next of kin and distributees: or, as it calls them, in relation to these chattels, the heirs of the late Anthony Hook, to be in some way or other parties to this suit: but they have neither been made plaintiffs, nor defendants as such; and therefore, all that has been said, or proved about them, and their agreements, must be rejected as mere surplusage, and entirely foreign to the matter now under consideration. William McMechen, a defendant, says, he answers "the bill of complaint of James Neale and others, representatives of Anthony Hook, deceased:" and in the body of his answer, he says, "during all which time several of the complainants resided in the neighborhood of the said land:" others of the answers seem to have an eye to some other complainants, besides Neale. These respondents appear, in this respect, to have turned their attention to some of the irrelevant [**13]  circumstances related in the bill, without sufficiently regarding its substance. But all such expressions and allusions, in the answers, must, in like manner, be rejected as surplusage.

So much as to the excrescences, the foreign matter, and mere careless verbiage of the bill, and some of the answers. But, before we can proceed to consider the merits of the case, it will be necessary to ascertain from these pleadings, as accurately as practicable, what is the matter as to which the parties are at issue; and what part of the allegations of each had been admitted, taken for true, or is to be sustained or combatted by proof. In relation to these matters it will be necessary to explain, recollect, and apply some of the general rules in relation to answers.

The first of these general rules, which have a bearing upon this case is, that where the general replication is put in, and the parties proceed to a hearing, all the allegations of the answers, which are responsive to the bill, shall be taken for true; unless they are disproved by two witnesses, or by one witness, with pregnant circumstances. The answer to this extent is considered as evidence, and conclusive, unless disproved;  [**14]  even although the defendant may have a direct and palpable interest in establishing the truth of what he advances. 3 Wheat. 527. An answer is only so far responsive as it answers to a material statement, or charge in the bill, as to which, a disclosure is sought; and which is the subject of parol proof; but no further. Where a deed, or instrument of writing is necessary to establish any right, and the bill enquires for the evidence of such right, the answer, unaccompanied and unsupported by such deed or writing, will be no evidence, although it should directly respond to the bill; because the answer is only in the nature of parol evidence; and in such case, evidence of a higher grade is required by law. 5 Harr. & Johns. 381.

But where the bill asks for the production of evidence, which from the nature of the plaintiff's case, he has a right to claim, that may be necessary and useful to him in other cases beside the one then under consideration; an answer to such a bill is not responsive, which merely asserts the facts without saying any thing of the evidence of its existence, or the means of obtaining it. And, where a defendant, by his answer, asserts a right affirmatively [**15]  in opposition to the plaintiff's demand, he must establish it by proof; or the assertion will be disregarded: for, a defendant cannot be permitted to swear himself into a title to the plaintiff's estate. 1 Wash. 225. 1 Mun. 395. 2 John, C. Rep. 87. 2 Ev. Poth. 157. But where an administrator is called upon to answer certain matters, which appear to have rested exclusively within the knowledge of his intestate, it will be sufficient that he swears as he is informed and believes; Carnan, Ex'rs vs. Vansant's administrators, 1807, M. S., but such an answer is to be taken with reference to the reasons given for his belief; for, if the reasons are futile, and especially if the alleged belief be in a high degree irreconcilable with the admitted, or established circumstances of the case, the answer cannot be credited: nor be allowed thus loosely to swear away the equity of the bill. Tong. vs. Oliver and others, 1809, M. S. 9 Can. 160.

A second general rule is, that every allegation of the answer, which is not directly responsive to the bill, but sets forth matter in avoidance, or in bar of the plaintiff's claim, is denied by the general republication, and must be fully proved,  [**16]  or it will have no effect.

A third general rule is, that, if the defendant submits to answer at all, he must answer fully, and particularly: not merely limiting his responses to the interrogatories of the bill: but respond to the whole and every substantial part of the plaintiff's case. 1 John, C. Rep. 75, 107. He is not however, bound to go further, and to answer any interrogatory asking a disclosure of matter no way connected with, or material to the case. If the answer be in any respect evasive, or insufficient, the plaintiff may except to it; and thus extract from his opponent a full and perfect answer. But to this general rule there is a modification, the nature and bearing of which may be sufficiently illustrated by one or two instances: a defendant to a bill of discovery, answered a portion of it, and as to all the other matters therein set forth, he answered and said, that he had no other knowledge of them, than what he had obtained confidentially as counsel; and therefore declined answering further: this answer was deemed sufficient; and again a defendant answered as to part, and as to the residue relied upon the statute of limitations: this answer was also held to be [**17]  sufficient. In such cases, a part of the answer performs the office of a plea; and the defendant thus makes defence to the whole case, by a disclosure of all the facts so far as he is bound so to respond; and for the residue, by presenting such an equitable bar to the plaintiff's claim, as is a sufficient excuse for not answering in the manner required by the bill. The exact compass of this modification of the rule, that if a defendant submits to answer at all, he must answer fully, remains yet to be adjusted. 2 Mad. Ch. 339. Much has been said upon the subject; but as the cases in relation to this "distracted point," as it has been called, have no bearing upon the case now under consideration, they have been thus generally noticed merely to prevent misapprehension.

A fourth general rule, is one which grows out of the third rule, that exacts a full answer: and requires to be attentively considered in this case: it is, that where the defendant fails to answer any of the material allegations of the bill, such unanswered allegations shall, at the hearing, be taken to be true. a Thus were the bill demands the delivery of two pieces of property, and the answer makes defence as to one,  [**18]  but is totally silent as to the other. In such case according to this rule, the bill may be taken pro confesso for that, as to which the answer is silent; and the plaintiff may obtain a decree accordingly. The propriety of this rule has, however, been questioned; and therefore it stands in need of all the support it can derive from authority, reason, and analogy.

a The fourth general rule above stated has been denied by the appellate court in the late case of Warfield vs. Cambrill.

If, upon exceptions, the answer is held to be insufficient, the defendant will be ordered to answer more fully: and if he fails to do so, in England, sequestration will go against his estate. The plaintiff need not, however, stop there, but may proceed to have his whole bill taken pro confesso; for the court is in the habit of considering an insufficient answer as no answer. 2 Atk. 21. 3 Ves. 209. 1 V. and B. 367. 2 Ves. and B. 258. In this state, obedience to the order directing a more perfect answer, upon exceptions being sustained, is usually enforced by attachment; but, as in England, on the defendant's failing to answer as ordered; and the process of attachment [**19]  failing to coerce an answer, as required, the whole bill may be taken pro confesso. 3 Ves. 372 209; so, where the defendant had answered, and the plaintiff then amended his bill, introducing new matter, he is entitled to an answer to such new matter; because, an amended bill is a part of the original bill, and the defendant's answer thereto is a part of his original answer; and consequently, the defendant is as much bound to answer the amended bill, as to answer each portion of the original bill itself. Therefore, if he fails to do so, the plaintiff may proceed, according to the course of the court, and have his whole bill taken pro confesso. 4 Ves. 619. 3 John. C. Rep. 410. For, as it has been said, if the plaintiff should not be entitled to such a decree under those circumstances, then the authority of this court would be very defective and the justice of it might be eluded. 2 Eq. Ca. Ab. 179. 1 Har. Pr. Ch. 277. 2 Atk. 21.

A plea is a special answer to a bill, differing in this from an answer in common form, as it demands the judgment of the court, in the first instance, whether the special matter urged by it, does not debar the plaintiff [**20]  from his title to that answer, which the bill requires: but where, from the matter set forth in the bill, an answer is required to support a plea, it will be overruled without such an answer; upon the ground, that the matters not thus answered are taken for true. As where the bill sets out a claim arising on a mortgage made more than twenty years before the institution of the suit, and then goes on to shew, that there have been such partial payments, or recent acknowledgments, as would take the case out of the statute of limitations, were it pleaded. In such case, a plea of the statute of limitations must be supported by an answer, denying such partial payments and recent acknowledgments; for, otherwise, those circumstances, not being denied by the plea, would be taken for true, if not denied by way of answer; and would show, that the case had been taken out of the statute. 2 Scho. & Lef. 725.

These authorities appear satisfactorily to sustain this rule; and to shew, that the defendant cannot be allowed, with impunity or advantage to himself, to refuse to answer at all; or, in any manner or form, to stop short, or to omit to answer any material part of the plaintiff's [**21]  case: and, that the consequence of such a refusal or failure, is, that the whole bill, or so much of it as remains unanswered, may, at the hearing, be taken pro confesso.

The proceedings in Chancery have been formed according to the course of the civil law, in some respects; and analogous to the common law in others; and, as to all matters of substance, there must be the same strictness in pleading in equity, as in law. Mit. Pr. 232. Hence, it is not infrequent, where a case arises, as to which former decisions furnish no safe guide, to have recourse to the illustrative analogies of the common law. 2 Atk. 21. 3 Atk. 589. 6 Ves. 594. 9 Ves. 55. 11 Ves. 292. Supposing, then, that in relation to this subject, there was a total absence of all manner of precedent and authority, the analogous course of the common law will be found to afford much and strong light.

At common law, there are two defaults; the one before, and the other after appearance. The consequence of the first, in England, is, that the defendant may be outlawed; and in this State, in many cases, is, that an attachment may go against his estate. The [**22]  consequence of the second default, or the defendant not putting in any plea at all, is, that the plaintiff may have a judgment by nil dicit. The plea is called, at common law, the answer of the defendant: and, if he fails to answer, judgment is awarded against him on the ground, that he has thus tacitly admitted, or confessed the case of the plaintiff, and left him nothing to litigate or to prove. So, in equity, after an appearance, the taking a bill pro confesso, where no answer has been put in, or no sufficient answer, after exceptions have been sustained, is analogous to the taking the declaration for true, where the defendant has put in no plea at all, or it has been held insufficient on demurrer. 2 Atk. 21.

It is a rule at common law, that every plea must answer the whole declaration, or at least every material part of it, which goes to constitute the gist of the action. But, the defendant may fail, or purposely decline to plead, or answer to every part of the declaration: in which case the plaintiff may join issue on the plea, and take his judgment for the unanswered part as by nil dicit. And we are told, that it is frequently judicious to plead only to part,  [**23]  or to admit a part of the cause of action in order to save the costs of the trial of such matter: for, nothing can be tried, that is not put in issue; and the defendant, by declining to answer a part, deprives the plaintiff of the power to burden him with the costs and expense of proving that, on a trial, which he has not denied, and put in issue. 1 Chit. Plead. 509. So, in equity, where the defendant fails, or declines answering any material part of the plaintiff's bill, as to which he seeks, and may obtain relief, it amounts to a tacit admission of so much: and, such part of the bill may, therefore, be taken pro confesso: and, if the declining to answer a part of the cause of action may, from any motives, be judicious at common law, certainly a defendant in Chancery may be induced for like reasons to pursue a similar course; since no costs, or expense, can be allowed in Chancery, any more than at law, for the proof and trial of any matter not put in issue. 2 P. Will. 557. 19 Johns. Rep. 505. 2 Desan. 172. Upon the whole, this rule in relation to pleadings in equity, appears to be as fully sustained by analogy to the course of the common law, as by direct [**24]  and positive authority.

There is, in many instances, a strong disposition manifested by courts of Chancery to harmonize their proceedings, in principle, with the positive rules of the common law. But, where the Legislature have prescribed rules of proceeding for the court itself; and cases occur within the spirit, but not within the letter of them, the Chancellor feels himself, not merely invited, for the preservation of harmony, but becomes sensible of a duty to conform, upon the ground, that equity is bound to follow the law in spirit and in principle.

In equity, the consequences of a default before appearance, when pursued to the utmost, seldom enabled the plaintiff to obtain the precise relief he was in quest of; because, there could be no adjudication upon his case, applying the remedy, as specific performance, or the like, exactly to suit it, until the defendant had appeared, and the allegations of the bill had been taken for true or established. The English courts, evidently under a strong sense of the necessity of their being some better mode of attaining justice, than by a sequestration of the defendant's estate, have carried the doctrine, in relation to substituted [**25]  and constructive summons, full as far as was within the compass of judicial power; further than it ever was in this State; and yet, short of the point of manifest and general utility. In the year 1718, the Legislature partially interposed, and by the act of 5 Geo. 2, ch. 25, provided the means of enabling a plaintiff to proceed against a defendant, who had not entered his appearance, and have his bill taken pro confesso; which could not be done in equity until then. 2 Atk. 23. This statute was introduced and used in this state, Kil. Rep. 189, and seems to have been the original settler among us; whence sprang that numerous family of legislative enactments upon this subject, to be found in our statute book, from the year 1773 down to the present time.

The following is a list of the acts of Assembly under which a bill may be taken pro confesso against a defendant, who has not been summoned nor has appeared: 1773, ch. 7, sec. 3. 1785, ch. 72, sec. 30, 31. 1787, ch. 30, sec. 1. 1790, ch. 38, sec. 3. 1792, ch. 41, sec. 2, 4. 1794, ch. 60, sec. 2, 3, 5, 9. 1795, ch. 88, sec. 1, 2. 1797, ch. 114, sec. 2, 3. 1799, ch. 79, sec. 3, 4. 1804, ch. 107, sec. 2. 1820,  [**26]  ch. 161. These acts provide for all the cases that have, or, as it is supposed, can occur; absent or absconding defendants; non-resident defendants, who are either non compos, infants, or adult; absent or non-resident mortgagors; defendants who evade the service of the subpoena; the case where there are two or more defendants, of one or some of them being non-residents; the case of a bill of revivor, where the party had removed out of the State, &c. And where a party had been returned summoned, but had failed or refused to appear and answer, the acts of 1785, ch. 72, sec. 1, 9. 1799, ch. 79, sec. 1, 2. 1820, ch. 161, provided that the plaintiff may, according to a prescribed mode, have his bill taken pro confesso.

According to the course of the English court, there are cases in which an implied confession is held to be a sufficient ground for a decree: as where the defendant appears, and has been attached for not answering, and is brought three times from prison into court, and has the bill read to him, and refuses to answer; such public refusal in court amounts to a confession of the whole bill. So too, where a person appears and departs without answering, after which process [**27]  has gone against him to sequestration, there also the bill is taken pro confesso; because, it is presumed to be true when he has appeared and departs in despite of the court, and withstands all its process without answering. For. Rom. 36. But, these modes of having a bill taken pro confesso, having been deemed in many respects too oppressive, or unnecessarily tedious, 1 John. C. Rep. 8, more easy and expeditious modes have been provided by the acts of 1785, ch. 72, sec. 20. 1779, ch. 79, sec. 2, 9; and 1820, ch. 161, sec. 1. By these acts, if a defendant, who has appeared, fails to demur, plead, or answer, according to the rules of court, within a limited time, the bill may be taken pro confesso.

At law, where the nature and amount of the plaintiff's demand may be distinctly ascertained from the declaration, as in debt assumpsit, upon a promissory note, or the like, the judgment by nil dicit, is final; but in actions for the recovery of damages only, it is not so; because the amount claimed is uncertain; and, therefore, an enquiry must be made, and proof heard as to the quantum which the plaintiff is entitled to recover. Suits in equity are susceptible, in some degree, of a similar [**28]  classification; and, hence it is, that several of our acts of Assembly, which allow the bill to be taken pro confesso, go on to declare that the Chancellor may, in his discretion, order a commission to issue for the plaintiff to examine witnesses to prove the allegations of his bill; or the plaintiff may himself be examined on oath. But in some of these acts such a provision was omitted; and hence, by the act of 1799, ch. 79, sec. 5, it is said to appear unreasonable, that, in any case whatever, the Chancellor should be directed absolutely to take the bill or bare allegations of a suitor pro confesso; and, therefore, enacts that, in all such cases, it shall be at the discretion of the Chancellor, either to take the bill pro confesso, or to direct a commission for taking depositions ex parte: which law, as amended by the act of 1818, ch. 193, sec. 6, 5, has enabled the Chancellor to call for proofs and explanations in all cases which appear to require it.

These, then, are the legislative rules in regard to the whole bill, where no answer at all is put in. But not one of these acts of Assembly which seem to have provided, with such an infinite deal of care and solicitude, for all [**29]  the various causes and modes of neglecting or failing to answer the whole bill, do, in any manner, speak of, or allude to the case of a neglect or refusal to answer a distinct or material part only of the bill: where an answer is made to all the rest. The act of 1795, ch. 88, sec. 1, says, the bill may be taken pro confesso, and the Chancellor shall proceed to decree in the same manner, as if the defendant had admitted by his answer the facts stated in the bill; and in case the defendant has been summoned, or has appeared, and fails to answer, he must be ordered to do so, by an appointed day; or an interlocutory decree may be entered on the default, and a commission issued ex parte: but, in every case the consequence of the default is, that the bill may be taken pro confesso.

Hence it appears to be clear, that these legislative rules which, according to their letter, are only applicable to the case where there is no answer at all, must, in spirit and principle, be alike applicable to the case where the answer only covers a part of the material allegations, and is totally and absolutely silent as to the residue of the bill; and, consequently, according to the principle and spirit [**30]  of these legislative rules, the unanswered part of the bill must, on the hearing, be taken to be true; otherwise, there would be a manifest inconsistency in the course of the court: and although a party might have a right to relief in Chancery, and be entitled to an answer to every allegation in his bill, necessary to sustain his claim to relief: if the defendant failed or refused, to answer them all, he might have his bill taken pro confesso; yet, if he failed or refused to answer a part of those allegations for such part unanswered, he must pursue a different course. But the reason and principle being the same, the rule must be the same in both cases. If the whole bill is left unanswered, it may be taken for true: and if a part only be left unanswered, that part must, in like manner, be taken for true.

These acts of Assembly of ours, allowing a bill to be taken pro confesso on the defendants default in not answering all of them, authorize the Chancellor in such case to pass a final decree at once, if he deems it unnecessary to issue a commission. The decree by default, in all such cases, is as completely final and absolute, as a judgment by default in an action of debt at common [**31]  law. The course of the English court of Chancery is, in some respects, different. There, when the plaintiff obtains a decree by default, a provisional clause is superadded, that such decree is to be binding on the defendant, unless being served with process, he shall, within a limited time, shew cause to the contrary. And this decree, being sub modo only, is emphatically a decree nisi; which cannot be, nor ever is considered as final, until the party has been served with process, and it has been made absolute by the court itself, 1 Harr. Pr. Ch. 625. Redes, Tr. 195.

This, it seems, has long been the established practice of the courts of Chancery of Virginia; so, that where a defendant has not answered the bill, it is held to be error to enter a final decree against him, taking the bill pro confesso, without the previous service of a decree nisi: 3 Mun. 83. 2 Hen. & Mun. 19. And it has also been held in that State, that, were some of the allegations of the bill were not answered, the plaintiff might either except to the answer as insufficient, or move to have the unanswered part of the bill taken pro confesso. But, if he does neither, it must be proved, that he shall not, on the [**32]  trial, avail himself of any implied admission by the defendant: for, where the defendant does not answer at all, the plaintiff cannot take his bill for confessed, without an order of court to that effect, and having it served on the defendant; and this is the only evidence of his admission: of course, if this mode of proceeding as to the confession of the whole bill be correct, it must be equally correct, as to the confession of any part; 2 Hen. and Mun. 17, 19. 2 Mun. R. 298-86. 4 Rand. R. 454. 6 Cran. 51.

Such is the rule, of the Chancery courts of Virginia. The default, in not making any answer at all; and that of not answering all the allegations of the bill, are precisely alike in kind, differing only in degree: hence, the courts of that State, have applied the same rule, in spirit and principle, to both defaults. The party is allowed to pursue the same course to have his bill, either wholly or partially taken pro confesso, according to the extent of the defendant's default. In this State no decree, nisi, is ever entered and served on a defendant who has not answered: but an absolute decree may be entered at once, as soon as he can be fixed with the default;  [**33]  which can be at any time after the limited period for answering has elapsed, or when he has elected to make, and has actually filed his answer to the bill. The principle and reason of the rule, in Virginia and in Maryland, are the same in relation to a partial answer. The courts in each State, follow the spirit of the established, or legislative rule, which directs the mode of proceeding, in case the defendant puts in no answer at all.

The plaintiff is entitled to an answer to each allegation of his bill, which he may require; either because he cannot prove the facts, or to aid his proof, or to avoid expense: and if the plaintiff conceives the answer to be insufficient to the charges in the bill, he may except to it; which has been compared to a demurrer at law, for want of form. The sole object of exceptions is, to extract from the defendant a more full and perfect disclosure, for the benefit of the plaintiff. They are never meant, nor intended, nor are they calculated to benefit the defendant, or to put him upon his guard in any respect whatever. The plaintiff may, if he chooses, waive his right to except: and it is always most judicious to do so, where his proofs are ample [**34]  and at hand; and the character or conduct of the defendant indicates that he is not altogether trust worthy upon oath: for in such case, he will attain his object much sooner and better, by taking the answer at once, as he can get it, and proceeding directly to collect proofs, without loss of time, than by stopping to take exceptions. This is the case where the answer is an evasive, imperfect response; but yet such a one as goes to the whole bill, and by which each of its allegations is denied and may be put in issue. But to what end, or for what purpose, where no explanation or discovery is sought for by an allegation, should the plaintiff by exceptions call for an answer to it; where it is impliedly, and tacitly admitted by not being answered. In such case, both parties would be delayed and troubled, and the defendant put to much expense without any object whatever.

The general replication puts in issue only the denial or avoidance of the answer, nothing more; and neither party is allowed, nor can be called on, to adduce proof respecting any matter not put in issue. The unanswered part of the bill therefore must be admitted, since it cannot be, according to a correct and orderly [**35]  course of proceeding, proved at the hearing. But if the unanswered allegations of a bill were required to be proved, or to be rejected altogether at the hearing, then the defendant would be allowed to take advantage of his own laches: and a want of frankness and simplicity, altogether unbecoming a court of equity, would be tolerated and encouraged: and the plaintiff would be driven to except, in all such cases, merely to extract from the defendant, either a general denial, or an express, instead of a tacit disclaimer or confession; when, in truth, it might have been the intention of the defendant, as it is fair to infer it was, to concede the unanswered allegation, for the express purpose of avoiding the costs and expense of an answer, of exceptions, and of proofs, by letting a decree by default go for so much as he had left unanswered.

In ancient times, when the defendant used only to set forth his own case, in the answer, without answering every clause of the bill, it was the practice for him to add, at the end of the answer, a general traverse, without that, that the matters set forth in the bill are true, &c. But, where the whole bill, and every clause in it, has been fully [**36]  answered, the adding of a general traverse is rather impertinent than otherwise; and, if issue is taken, upon its general traverse, it is a denial only of every thing not answered before by the answer. 2 P. Will. 87. But, there is no case, in which this general traverse has ever been relied upon, as an answer. If it ever had been so considered, it must have occurred, in some of the numerous cases of exceptions to answers, to have insisted on it as such; yet nothing of the kind appears. The whole range of adjudged cases shew, that the extent and compass as well as the sufficiency of the answer, as whether it is as frank as it ought to be, or whether it covers the whole, or only a part of the bill, are to be ascertained from the body of the answer itself: and not from the formal introduction, or the formal general traverse or conclusion of it. But, in this case the usual general traverse, denying the truth of all the unanswered allegations of the bill, has not been added by the way of conclusion to any of the answers.

In the case of Hopkins vs. Stump, et al. 2 Harr. and Johns. 301, Chancellor Hanson says, "it would seem likewise, that the complainant misunderstood the [**37]  Chancellor in another particular. But no person, acquainted with the laws, or rules, or practice of this court, would conceive it the meaning of the Chancellor, that whatever matter stated in a bill is not denied, must be considered as admitted. No| If interrogatories stated in a bill are not answered, the complainant has a right to except to the answer, and if the interrogatories are proper, the defendant will be compelled to answer plainly, fully and explicitly. If then any material matter charged in the complainant's bill, has been neither denied nor admitted by the answers, it stands on the hearing of the cause for nought; this assuredly every lawyer will admit."

This language is strong, indicating that it came from a mind at home upon the subject before it, and that it was thoroughly and perfectly satisfied of the correctness of the positions thus advanced. But, to the latter of them, my mind cannot yield its assent; and, therefore, I have deemed it a respect due to the memory of my predecessor, to set down the authorities, and the reasons which have led me to a different conclusion. From all that has been said upon the subject, it appears to be agreed on all hands, that [**38]  the plaintiff being entitled to an answer to each allegation contained in his bill, may except to an answer which omits to respond to any of them; that, in Virginia, the plaintiff, by a certain prescribed mode of proceeding, may have the unanswered allegations taken for true, but if he omits to take that course for that purpose, and goes to hearing, he must then prove the truth of the unanswered allegations, or they will be disregarded; that according to Chancellor Hanson, the unanswered allegations stand on the hearing of the cause for nought, and that in my opinion, all material allegations of the bill, as to which the answer is entirely silent, are on the hearing, to be taken pro confesso.

A fifth general rule is, that where an answer in the body of it, purports to be an answer to the whole bill, but the respondent declares, that he is entirely ignorant of the matters contained in the bill, and leaves the plaintiff to make out the best case he can, or any language to that effect; and, the plaintiff files the general replication; all the allegations of the bill are thus denied and put in issue; and consequently, all of them, must be proved at the hearing against a defendant [**39]  who has thus answered. 1 Ves. 274.

This is England, is said to be the usual form of the answer of the Attorney General; and no exception can be taken to such an answer; or, indeed, to any answer of the Attorney General, 2 Mad. Ch. 335. The same form and rule prevails here, where the Attorney General appears for the State. This also is commonly, the form of the answer of an infant, or a person non compos, who answers by his guardian or committee. And, by a long established practice, individuals, who are, in truth, ignorant of the whole matter as to which the bill requires any disclosure; but who are made defendants as having an interest in the matter in controversy, have been permitted, by this general mode of answering, to deny the whole bill, and to put the plaintiff to prove all its allegations at the hearing. 6 Harr. and Johns. 291. If, however, it appears from the bill, that the defendant has any knowledge of any matter in it, he may be required to answer more fully and particularly to the extent of his knowledge or belief.

Divesting this case then, of all extraneous matter; of all that relates to the two first administrators of the late Anthony Hook; because,  [**40]  this plaintiff is incompetent, in the representative character in which he sues, to recover any thing, but so much of the personal estate of his intestate as remains in specie, or has remained, and is now in the hands of any one, who can be regarded as a trustee for the use of the late Anthony and his representatives; of all that which relates to the next of kin of the late Anthony Hook; because none of them, as such can have any title, but from one of his administrators, and no such title is alleged or pretended; and also, because none of them are made parties to this suit as plaintiffs; and Barbara Hagthorp and James Hook, who have been made defendants, are neither charged as, nor make any claim or defence in right of their being two of the legal representatives of the late Anthony Hook; and the case, when thus cleared on the part of the plaintiff, is simply this.

By a deed bearing date on the 17th of August, 1797, the late Anthony Hook conveyed certain property, therein mentioned, to the late John Hook, on the terms specified in the deed; which property came to the hands of the late John, and after his death, passed into the hands of Hagthorp and wife, as his administrators;  [**41]  and is now held and detained by them, and the other defendants, who claim from, and under them. The plaintiff alleges, that this property, according to the nature and terms of the deed, was conveyed to John, as an indemnity; in case and upon condition, that he should pay certain debts, therein specified, which have not been paid; and, consequently, that the late John Hook had held, and his legal representatives, and those who claim under them, now hold this property as trustees, for the use of the late Anthony Hook and his legal representatives; who is now the present plaintiff: upon which the complainant prays that this property may be accounted for and delivered up, together with the profits thereof.

The whole of this controversy has grown out of the deed of the 17th of August, 1797, from the late Anthony Hook to his son, the late John Hook. This indenture recites, that Anthony, being justly indebted to John Moale, and thirteen other persons who are named; but the amount due to any, or all of them, is not specified: and then declares, that John had agreed to pay those creditors of his father, Anthony, their several and respective debts; in consideration of which, and also in [**42]  consideration of natural love and affection for his son; and of the further consideration of five shillings, Anthony conveyed to John his leasehold right, to two pieces of land; the one a lot of ten acres, part of the tract called David's Fancy: and the other a lot, fronting on Aliceana street, in the city of Baltimore, together with certain negroes and personal property; all of which are particularly described. The indenture then concludes in these words: "To Have and to Hold the said ten acre lot, and the other lot on Aliceana street, for and during all the rest, residue, and remainder of the original terms granted for each respectively, subject to the rents and covenants reserved and contained in the above, in part, recited lease and assignment: and To Have and to Hold all and singular the household and kitchen furniture, plate, and negroes, unto him, the said John Hook, his executors, administrators, and assigns, forever. Provided always, and it is the true intent and meaning of these presents, and of the parties hereto, and if the said John Hook, his executors, administrators, or assigns, shall absolutely omit, neglect, and refuse to pay the said recited creditors of the said [**43]  Anthony Hook, their several and respective just debts and demands against the said Anthony Hook, then this indenture, and every matter, clause, and thing therein contained, shall cease, determine, and be utterly null and void, to all intents and purpose whatsoever; any thing herein contained, to the contrary thereof, in any wise notwithstanding."

This proviso, or condition, is explicit and unequivocal. The estate conveyed to John Hook, was to be null and void, on his failing to pay and satisfy the enumerated creditors of Anthony Hook. It is, in fact, a conveyance, by Anthony, of certain property to John: upon condition that he should advance a certain sum of money for the use of Anthony. This proviso, with the recital, gives to the whole the shape and character of a pledge, or mortgage, from Anthony to John. It was intended to indemnify John, for money advanced by him to the use of his father: and all John can claim, by virtue of this deed, is indemnity and reimbursement for any money so by him advanced. In the ordinary cases of a mortgage, the grantor is the actual debtor of the grantee: and it is stipulated that the estate conveyed, shall be absolute, if the grantor fails to [**44]  pay at the appointed time. In this case, the grantee undertakes to substitute himself in the place of the creditors of the grantor, or to satisfy those claims: and if he fails to do so, then it is stipulated that the estate conveyed, shall be void. The object of the grantor, in both cases, is the payment of his debts; and, in both, security is the object of the grantee. That security, in equity, extends no further than complete reimbursement. The payment of the whole principal and interest due, and no more. 9 Wheat. 495. There is no clause in this indenture authorizing John Hook to sell the property, and to apply the proceeds of the payment of the claims of the enumerated creditors: and even if there were, it would not have destroyed the redeemable quality of this mortgage, or the resulting use arising out of the nature of this deed. 3 Harr. & Johns. 106. In this case it is alleged, that the late John Hook, and his representatives, have altogether failed to pay the enumerated debts, in compliance with the stipulations of the deed. If so, Anthony Hook had, and his representative now has, a right to a return of this property, with its profits: or, at least, to redeem it [**45]  on the payment of so much as has been advanced by John Hook, or his representatives.

It has been urged, that there is not the least room to deduce, from this deed, any thing like an implied or resulting use to Anthony Hook, and his representatives: because, it is declared to have been made, not only for a valuable consideration, as the payment of debts, and also of five shillings; but likewise for a good consideration, as the natural love and affection from the father to the son.

The doctrine of a resulting use, first introduced the notion that there must be a consideration expressed in the deed; or, otherwise, nothing could pass--but it would result to the grantor. It is certain, however, that the rule in relation to trusts, by implication, or operation of law, is by no means so large as to extend to every mere voluntary conveyance; and, consequently, if this deed stood alone, upon the valuable consideration of five shillings, and upon the good one of natural love and affection, or upon either of them, unconnected with other circumstances, there could be no doubt of its validity, as an absolute, and effectual conveyance, from Anthony to John. 2 Atk. 256. But,  [**46]  when other matters are necessarily brought into view, or form a part of the contract, then it is no less clear, that the mere express consideration of five shillings, even with the superadded expressions, "and of other valuable considerations," or of natural love and affection, will not prevent the deduction of a trust by implication or operation of law. 1 Ves. Jun'r. 92. 1 Atk. 93, 191. 2 Atk. 149. And where a trust is declared as to part, or the property is to be applied for a particular purpose, and nothing is said of the residue; what remains, so undisposed of, results to the grantor. 2 Fonb. 116, 133.

This indenture cannot be read with a total disregard of its recital and proviso, two of its most important features. We cannot turn aside from clauses, so very striking and efficient, as the recital of the cause of its having been made, and the proviso wherein it is said, if that consideration alone be not complied with, the whole shall be a nullity. If these matters could be entirely passed over, the argument against a resulting trust would be exceedingly strong, if not altogether irresistible. But, looking to the recital, and the proviso, it is perfectly [**47]  manifest, that the sole object of the deed was to secure the payment of certain creditors of Anthony Hook. If they were not paid, the whole deed, utterly regardless of the consideration of five shillings, and of natural love and affection, was declared to be void. The payment of the creditors was, then, that consideration alone upon which the conveyance was to stand or fall. This, is the real extent of the consideration, no more; and to this extent, and no further, the late Anthony Hook parted with his right and interest in this property: consequently, in the value of this property, beyond that of the aggregate amount of the specified debts, there is an implied or resulting use, remaining or vested in Anthony Hook, the grantor, and his representatives.

But, there is an express saving in the statute of frauds, of trusts by implication or operation of law; nor does the statute affect trust of mere personalty. 10 Mod. 404. 3 Bro. C. C. 587. Such uses, therefore, might in this case be established by parol proof, if this were not sufficiently manifest from the terms of the deed itself. 2 John C. Rep. 409. Let us now, then, turn to the answer and proofs.

Hagthorp [**48]  and wife have answered jointly. She, before her marriage with Hagthorp, obtained letters of administration on the personal estate of her late husband, John Hook, and it is in that character only, that they are now brought here as defendants. They say, in relation to the enumerated creditors of the late Anthony Hook, "that the said John Hook paid the said sums of money, set out in the assignment, so far as the creditors applied for payment of the same:" and again, "that the said John Hook accordingly paid the debts particularly mentioned therein, (that is in the deed) as these defendants believe and charge."

It is too late now to inquire whether this answer is as frank and unexceptionable as it ought to have been or not. The only question at this stage of the proceedings, is, whether it be such a response to the bill as constitutes a sufficient defence, if uncontradicted by proof; or whether, as is often said on motions to dissolve injunctions, the answer has sworn away the equity of the bill?

The first of these sentences cannot be considered as a distinct answer to any extent; either, that the debts have, or have not been paid: and the second of them amounts to no more than [**49]  a declaration of a belief that they have been paid. Where the nature of the transaction, charged in the bill, is such a one as must have been altogether within the knowledge of the intestate, the administrator may answer as he is informed and verily believes; but, the answer of an administrator must always be taken, as well with a reference to the reasons given for his belief, as to the nature of the subject of which he speaks. This, however, is a broad assertion of a belief, without giving any reasons for it; or its appearing, or being alleged, that the matter was exclusively within the knowledge of their intestate. In these particulars this answer is not so responsive to the bill as to constitute an available defence.

But, according to the bill and the deed, which is made a part of the bill, John Hook undertook to pay certain debts due from Anthony Hook. The answer to this charge must, then, from the nature of things, be such a one as would furnish evidence available to Anthony or his representative: it is that, the bill seeks. For, by the deed, Anthony was to be protected from the claims of his creditors; and upon John's affording that protection his title rested. In effect [**50]  the bill asks, not only whether the debts have been paid, or not; but more, it requires the evidences of their payment to be produced, as a means whereby Anthony, and his representatives, may be protected against those claims; and such evidence, in addition to any thing that might be said in the answer, is also necessary; because it constitutes an affirmative part of that title set up by John Hook's representatives, in opposition to the plaintiff's claim; and must therefore be supported by indifferent testimony. All the claims of the enumerated creditors which have not been paid, it is most likely have been long since barred by the statute of limitations; but that is a protection which the law itself gave to Anthony. He is entitled, by the terms of his deed, to be furnished by John with the evidence of their being satisfied, as the means of his protection in that form. This answer, therefore, is not for these reasons also, so responsive to the bill as to afford the defendants an adequate defence. On adverting to the proofs and exhibits, it appears that John Moale's is the only one of the specified claims that has been satisfied; and none others are to be allowed as paid.

I lay [**51]  out of this case the testimony of Henry Burman, who, as the husband of one of the distributees of Anthony Hook, has an interest in establishing the facts to which he testifies, and is, therefore, incompetent. All the other witnesses are competent. From the copy of the unexecuted bond, the declarations of Bishop Carroll, and the other occurrences and proceedings in the Orphans' Court found among the proofs, it appears to have been perfectly well understood between Anthony and John, during their lives, that John held, as the trustee of Anthony, according to the terms of the deed: and it appears, that the representatives of John always admitted, that they held under the deed; and yet, except the claim of John Moale's, it does not appear, that they ever undertook to shew, that any of the claims of the enumerated creditors had been satisfied. It lay upon John and his representatives to shew, that those claims were paid; and they have not done so, and the truth is therefore that, except Moale's claim, none of them have been satisfied.

The answer of Hagthorp and wife, after some preliminary notices of several allegations in the bill, and those responses, as to the payment of the enumerated [**52]  debts, passes on to a long history of the sayings, actings, and doings of sundry of the next of kin of the late Anthony Hook, in relation to the ten acre lot; as to all of which, for the reasons already assigned, it will be unnecessary to say any thing further. The bill specially charges, that Hagthorp and wife, by a deed dated on the 23d day of December, 1819, leased, or assigned, a part of the lot on Aliceana street, to Matthew Bennett. Of these special allegations, these defendants take no notice; but say, that the late Anthony Hook, by an indenture dated on the 8th day of May, 1797, conveyed the lot on Aliceana street, to the late John Hook. This is an allegation in avoidance of the bill, and certainly required to be supported by proof. But their is not even an exhibit, nor one tittle of proof in relation to it. This part of the answer, therefore, passes for nothing.

As to all the allegations of the bill, in relation to the negroes, and other moveable property mentioned in the deed, this answer is absolutely and totally silent--it says nothing: and, consequently, as to so much the bill must, according to the rules that have been laid down, be taken pro confesso.

Upon [**53]  the whole, then, and from what has been said, it follows that the defendant, Hagthorp and wife, as the legal representatives of the late trustee, John Hook, will be decreed to deliver up to the plaintiff, all the property mentioned in the deed; or to pay the value of so much as they may have converted, or fail to deliver, together with the profits thereof, or the interest on the value; except certain allowances, and those parts wherewith the other defendants may be charged, as I shall now proceed to enquire and determine.

All the other defendants deduce their title, either directly or indirectly, from Hagthorp and wife, except Nathaniel Chittenden, who traces his claim from the late John Hook. But all allege, that they are purchasers for a valuable consideration, without notice. There is no principle of equity better settled, than that such a purchaser will not be disturbed by this court. On the other hand, it is equally well settled, that he who purchases with a knowledge of the trust, becomes himself the trustee, and stands in the place of the vendor, under whom he thus claims, subject to all his liabilities. Yet a person having himself notice, who purchases of one who had not [**54]  notice, may protect himself by the want of notice in his vendor; nor shall a purchaser without notice, or a previous purchaser with notice, be affected by the notice of his vendor: and where a purchaser cannot make title, but by a deed, which leads him to a knowledge of the fact; and more especially where the deed, by virtue of which he takes, recites, or directly refers to that instrument in which the trust is declared, or from which it arises, he shall be deemed cognizant of the fact, and a purchaser with notice. These are the well established principles of equity upon this subject. 2 Fonb. 147, 151.

William McMechen, in his answer, avers that he is a purchaser, for a valuable consideration, without notice; and yet makes an exhibit, by his answer, as a part thereof, of a deed dated on the 9th of September, 1803: under which he takes from Hagthorp and wife, in which the indenture from Anthony Hook to John Hook, out of which the trusts arise, is clearly and distinctly referred to as one of the links in the chain of the title of Hagthorp and wife. This, of itself, is enough to shew that McMechen is a purchaser with notice. But the proofs leave no doubt upon the subject: they shew,  [**55]  that he had ample notice.

This defendant, therefore, will be decreed to deliver up and reconvey to the plaintiff whatever of the ten acre lot, thus acquired by him, he may now hold: and to account for the rents and profits thereof, from the date of the deed under which he obtained possession, with such just allowances as he may be entitled to; the nature of which shall be specified.

Samuel Moore and George A. Hughes answer jointly; they positively aver, that they are purchasers of William McMechen, for a valuable consideration, without notice. But they exhibit no evidence of title, nor any proof of right whatever. According to the rules and principles before laid down, they cannot be permitted thus to swear themselves into the estate of the plaintiff; and consequently, even if their answer were in other respects fully responsive to the bill it could not avail them as a defence, unsupported, as it is, by proof. These defendants will, in like manner, be decreed to deliver up and reconvey to the plaintiff the property held by them; and be also charged with rents and profits, from the 1st day of May, 1818, when it appears they obtained possession.

John Cator, by his answer,  [**56]  states, that he purchased of McMechen that which he holds. His predicament and pretensions are similar, in all respects, to those of Moore and Hughes.--Cator, therefore, will likewise be decreed to deliver up and reconvey, and also to account for the rents and profits of what he holds, from the 1st of May, 1818; when he was let into possession, with such just allowances as shall be specified.

John S. King, by his answer, states, that he leased from the defendant, Cator; but having exhibited no better title than his lessor, will be in a like manner, ordered to deliver up, reconvey, and account for the rents and profits, to the plaintiff, from the 9th of March, 1819, when he took possession.

John Weaver, in his answer, says that he, too, is one of those who purchased of William McMechen. This defendant has also left his answer entirely destitute, and wholly unsupported by any exhibits or proofs. He will, therefore, be decreed to deliver up, reconvey, and account for, the rents and profits to the plaintiff. He admits that he obtained possession in the year 1819; but does not specify the day or month. A medium, in the absence of proof, will, therefore, be taken; and the account [**57]  will commence on the 1st day of July, of the year 1819, with such just allowances as shall be specified.

The defendant, John Fitzgerald, in his answer, states that on the 4th of September, 1806, he purchased of John H. Hall, a part of a parcel of ground, containing ten acres; part of a tract of land called David's Fancy: that he gave for it a valuable consideration; and had no notice of the claim of the representatives of the late Anthony Hook. He then goes on to state, that he purchased of the defendant, Hagthorp, two other parcels of the same ten acre lot; the one on the 9th of August, 1810, and the other on the 17th of June, 1815; and that he purchased a fourth parcel of it, on the 17th of September, 1811, of Gerard Tipton; for all of which, he avers, he paid a valuable consideration, and that he had no notice of the claim of Anthony Hook's representatives. This answer is also entirely unsupported by any evidence whatever; and, therefore, this defendant will be decreed to deliver up, and reconvey to the plaintiff so much of the ten acre lot, mentioned in the bill, as he holds: and will, also be held accountable for the rents and profits thereof, from the dates when he obtained [**58]  possession of each parcel respectively. The nature of the just allowance to which he may be entitled, will be described.

Benjamin Rawlings, surviving executor of the late William Rawlings, states, that his co-executrix, Catharine Rawlings, who had been made a defendant, is dead: that he is in possession of part of the ten acre lot in the bill mentioned, by virtue of a deed bearing date on the 10th day of September, 1804. This answer is also entirely unsupported by proof. This defendant will be decreed to deliver up and reconvey the property, so held by him to the plaintiff; and be charged with the rents and profits, as executor, from the date of the deed under which his testator obtained possession; with such just allowances as shall be specified.

The defendant, Matthew Bennett, in his answer, says, that he is in possession of a part of the ten acre lot mentioned in the bill, which he holds under a conveyance from Hagthorp and wife, dated on the 3d day of August, 1810. But this defendant, too, has left his answer entirely destitute of proof. The bill expressly alleges, that Hagthorp and wife, by deed, dated on the twenty-third day of December, 1819, leased a part of the lot [**59]  on Aliceana street to Matthew Bennett: in relation to which, this defendant says nothing in his answer. This allegation of the bill, as against him, must therefore be taken for true. He will be decreed to deliver up, and reconvey all the property held by him, to the plaintiff: and to account for the rents and profits of each parcel from the time he took possession.

The defendant, Nathaniel Chittenden, admits that he holds possession of the lot on Aliceana street to which he derives title, through various mesne conveyances, from the late John Hook. He avers that he, and those under whom he claims, were, all of them, purchases for a valuable consideration, without notice; but produces no proof in support of the allegations of his answer. He will therefore, in like manner, be decreed to deliver up and reconvey the property, so held by him, to the plaintiff; and be held accountable also for the rents and profits.

The defendant, James Hook, on the 7th day of February, 1823, filled his answer; and he says therein, to the amended bill of the complainant; but there does not appear to have been any amended bill put upon the record until some time after that day. There is, however,  [**60]  no charge whatever made against this defendant, and therefore the bill will be dismissed, as to him, with costs.

I have said, that the recital and proviso in the indenture of the 17th of August, 1797, from Anthony Hook to John Hook, gave to that instrument the features and character of a mortgage. Consequently, the original parties stood and their legal representatives now stand in the relation to each other of mortgagor and mortgagee, or trustees, and cestui que trusts. No acts, or circumstances appear to have occurred to destroy the redeemable quality of that deed. Hagthorp and wife, as administrators of the late John Hook, have succeeded to his character of trustee, and the defendants who all claim under them, except Nathaniel Chittenden, who derives his claim from the late John Hook, as purchasers with notice for so much as they hold, stand charged with the same trusts.

The whole of the property mentioned in the bill has been continually in the possession of the late John Hook, and those who have succeeded to, and claim under him, ever since the year 1797. They have protected it, relieved it from burdens and charges, and have placed upon some parts of it lasting improvements.  [**61]  It now, therefore, only remains to apply the rules of equity in relation to these matters, and to direct how the accounts shall be stated.

If a mortgagee, without the assent of the mortgagor, assigns the mortgaged estate to an insolvent person who he puts into possession, he will be held answerable for the rents and profits received both before and after the assignment; upon the principle, of its being a wilful breach of trust, to transfer the property to another, which, as trustee, he had no right thus to dispose of, to the prejudice of the mortgagor. Pow. Mort. 948. 2 Fonb. 179. A trustee is, in no case, to be charged with imaginary values, but only with what he actually receives: and the same rule applies to a mortgagee, in possession, who is regarded as a trustee. But no default must be imputed to him; for in all such cases, he will be charged with what he might have made, but for his default. The annual value is that which the premises are actually worth nett, according to a fair estimate, clear of all necessary charges.

Under the head of just allowances, it has long been the course of the court to allow a trustee, or mortgagee in possession, for all necessary expenses [**62]  incurred for the defence, relief, protection and repairs of the estate: such as costs of suit, and fees for taking opinions and procuring directions necessary for the due execution of the trusts, 10 Ves. 184, taxes, paving contributions, ground rent, and sums expended in necessary repairs. Pow. Mort. 956, n. 2 P. Will. 455. It has been also said and I think with justice, that where a mortgagee, thinking himself absolutely entitled, had expended considerable sums in repairs and lasting improvements, he should be allowed the value of them. Pow. Mort. 956, n. And in a modern case, the value of new buildings, erected by the mortgagee, was allowed, 4 Ves. 482, and a liberal allowance for the improved value of slaves while in the possession of the mortgagee, was directed to be made. Ross vs. Worrall, 1 Wash. 14. The grounds of these decisions appear to be, that a mortgagee in possession, is the legal holder of the estate; which the mortgagor may at any time redeem and so prevent him from making any repairs or improvements, and if the mortgagee has been long in the possession, claiming adversely, and suffered to treat the estate at his own,  [**63]  and the mortgagor stands by and permits lasting improvements to be made, he shall pay for them. 5 Harr. & Johns. 147. 4 John. C. Rep. 122.

But the estimate of the value of such lasting improvements is to be taken as they are at the time of accounting or passing the final decree. For such allowances are made upon the ground, that the improvements do, in fact, pass into the hands of the plaintiff as a new acquisition. And they can only be a new acquisition to him, to the extent of their value at the time he recovers or obtains possession of them; and therefore their value at that time is to be allowed, and nothing more. 3 Rob. Adm. Rep. 101. It is also necessary to observe that in charging rents and profits, the estimate must not include any profits which arise exclusively from such improvements; for, if they were to be embraced by the estimate, the occupier would, in fact, be paying for the profits of that which was his own; and the plaintiff would be allowed to derive the benefit from a new acquisition before the court had awarded it to him. Therefore, the estimate of rents and profits must be made, in exclusion of such as appears to have arisen from the occupying [**64]  claimant's own expenditure in improvements. 1 John. C. Rep. 388.

In this case, the late John Hook disposed of the lot on Aliceana street, and his representatives Hagthorp and wife, having disposed of the other property in a manner in which they had no right to do, and the bill standing unanswered, and for true, as to the negroes and moveable property, Hagthorp and wife must be charged with the value of the whole of that property, and interest thereon, from the date of the deed from the late Anthony Hook to the late John Hook, and the account for the rents and profits of the chattels real, will commence from the same date. Hagthorp and wife must be charged with the rents and profits of all the chattels real, mentioned in the bill up to the time when they, or any part of either passed into the hands of any of the present defendants. But Hagthorp and wife will be held liable for the whole amount charged against the other defendants, or to the amount which all, or any of them may fail or be unable to pay to the plaintiff, and these defendants must be credited with the amount of the debt which was due from Anthony Hook to John Moale at the time of the execution of the deed to John [**65]  Hook, with interest thereon, from the time when it appears to have been paid.

The account against each of the other defendants will commence from the day on which it appears by his answer, or by the proofs now in the cause, or which may hereafter be exhibited, that he obtained possession, and he will be charged for all the time he held that portion of the property, or until it passed into the hands of another of the defendants. The account against each of the defendants who is now a holder of any portion of the property is, for so much as he holds, to be brought down to the time of taking the account.

Whereupon, it is ordered, on this 5th day of December, in the year 1826, that this cause be, and the same is hereby referred to the Auditor, with direction to state an account, or accounts, accordingly; from the proceedings and proofs now in the cause, or such other proofs as may be laid before him by the parties: and it is further ordered, that the parties be, and they are hereby allowed to take such testimony as they may think proper, in relation to the accounts so directed to be stated by the Auditor; on giving to the opposite party or his or their solicitor three days notice [**66]  as is usual. Provided, that no testimony shall be used before the Auditor, or, in any way admitted into this cause, unless it be taken and filed with the Register, on, or before the 15th day of January next. From this order the defendants appealed to this court.  

DISPOSITION:
APPEAL DISMISSED, WITHOUT COSTS.  

HEADNOTES:

In a cause which had been set down for hearing, the Chancellor, after argument of counsel, proceeded to discuss many rules and principles of equity, and a great variety of facts, as applicable to the subject under consideration; and announced his intention at some future day to decree accordingly. To enable him to do so, he referred the cause to the auditor, to state an account in conformity to his views, from the proceedings, and proofs then in the cause, or from such other proofs, as might be adduced by the parties, which they were respectively authorized to introduce upon notice, before a given day. In this state of the cause, an appeal was taken; and upon a motion to dismiss it, HELD, that the order in question did not so settle, or materially affect, all, or any of the rights, or interests in controversy, as to make it a decretal order, from which an appeal would lie;--that it was a mere preparative, to the decision of the cause, and not decretal; and that it was only from what the Chancellor had done, that is, adjudged, or decreed, and not from what he intends to do, that an appeal would lie.

A, by deed, conveyed certain real and personal chattels to I, upon the proviso, that if I, his executors, &c. should absolutely omit, neglect and refuse to pay certain creditors of A, recited in the deed, their just demands, then the deed should be void. This property came to the hands of I, and after his death, passed to his administrators and the other defendants claiming under him, and them. Upon a bill filed by the administrator de bonis non of A, praying that the property may be accounted for, and together with the rents and profits delivered up, it appeared that some part of the chattels real was still in the hands of I's representatives, some claimed by those who had purchased with a reference to the original conveyance, and the residue by those who offered no proof of being purchasers for value without notice. The Chancellor decreed that the deed would be considered a mortgage, and nothing having occurred to destroy its redeemable quality--but one of A's creditors having been paid, directed the auditor to state an account, in which I's representatives must be charged with the value of the whole of the personal chattels, and interest thereon, from the date of the deed from A to I; and with the rents and profits of the real chattels from the same date, and until the time when they passed into the hands of the other defendants; who were responsible during the time they respectively had possession. And that I's representatives would be held liable for all rents, and profits, which the other defendants should fail, or be unable to pay, giving them credit for the debt paid.     PER BLAND, CHANCELLOR.

According to the law of England, an administrator de bonis non, cannot call the representatives of the previous deceased administrator of his intestate to account, for any property of the intestate that such predecessor may have converted or wasted; nor can he claim or recover any thing, but those goods, chattels and credits of his intestate which remain in specie, and are capable of being clearly and distinctly designated and distinguished as the property of the intestate.     IB.

In equity, an executor or administrator, is considered as a trustee of the creditors, legatees and next of kin of the deceased; is expected and required to preserve the property of the deceased apart from his own; and if he does so, the court will do every thing that can be done to protect and assist him.

IB.

The only remedy at present against an administrator or his representatives, for any waste or misapplication of the effects of the deceased, is by an action at law upon his administration bond, by any one interested.     IB.

The authority conferred by letters of administration de bonis non by our law, is to administer all things described in the act of Assembly as assets, not converted into money, and not distributed, delivered, or retained by the former executor or administrator, under the direction of the Orphan's Court; and such an administrator can only sue for those goods, chattels and credits, which his letters authorize him to administer.     IB.

The legal title to the chattels real, and personal estate, of an intestate, vests in his administrator, who alone is considered as to them his legal representative; between the death, and the granting of letters, that title is suspended and vested in no one.     IB.

In the construction of the statute of distributions, it has been held, that although the creditors of the deceased are the first and special objects of its regard; yet that the next of kin, among whom the surplus is to be distributed take an interest which vests in them, by operation of law immediately, in the nature of a present debt of an unascertained amount payable at a future day; and it is clear that they can only obtain possession of their distributive share, through and from the administrator.     IB.

When the general replication is put in, and the parties proceed to a hearing, all the allegations of the answers which are responsive to the bill, shall be taken for true, unless they are disproved by two witnesses, or by one witness with pregnant circumstances.     IB.

Every allegation of the answer which is not directly responsive to the bill, but sets forth matter in avoidance, or in bar of the plaintiff's claim, is denied by the general replication, and must be fully proved or it will have no effect.

IB.

If a defendant submit to answer at all, he must answer fully, and particularly, not merely limiting his responses to the interrogatories of the bill; but respond to the whole and every substantial part of the plaintiff's case: he is not however bound to go further and to answer interrogatories asking a disclosure of matter, no way connected with, or material to the case.     IB.

When the answer in the body of it, purports to be an answer to the whole bill, but the respondent declares, that he is entirely ignorant of the matters contained in the bill, and leaves the plaintiff to make out the best case he can, or uses language to that effect; and the plaintiff files the general replication, all the allegations of the bill are thus denied, and put in issue; and consequently all of them must be proved at the hearing.     IB.

The rule in relation to trusts by implication, or operation of law, is by no means so large, as to extend to every mere voluntary conveyance.     IB.

Where the nature of the transaction charged in the bill, is such a one as must have been altogether within the knowledge of the intestate, the administrator may answer as he is informed and verily believes, but the answer of an administrator must always be taken, as well with a reference to the reason given for his belief, as to the nature of the subject of which he speaks. IB.

A purchaser for a valuable consideration without notice will not be disturbed in equity.     IB.

A purchaser with a knowledge of the trust becomes himself the trustee, and stands in the place of the vendor, under whom he claims.     IB.

A purchaser with notice, from another purchaser without notice, may protect himself by the want of notice in his vendor.

When a purchaser cannot make title, but by a deed which leads him to a knowledge of the fact; and more especially, when the deed by virtue of which he takes, recites, or directly refers to the instrument, in which the trust is declared, or from which it arises, he shall be deemed cognizant of the fact, and a purchaser with notice.     IB.

Under the head of just allowances, it has long been the course of this court, to allow a trustee or mortgager in possession, for all necessary expenses incurred for the defence, relief, protection and repairs of the estate. And when a mortgager thinking himself absolutely entitled, had expended considerable sums in repairs and lasting improvements, he should be allowed the value of them.     IB.

The estimate of the value of such lasting improvements, is to be taken as they are, at the time of accounting, or passing the final decree; and in charging rents and profits the estimate must not include those arising exclusively from such improvements.     IB.  

COUNSEL:
Williams, (District attorney of U. S.) and Learned for the appellee, moved the court to dismiss the appeal, upon the ground that an appeal did not lie from the order of the Chancellor in this case, as it did not settle any question of right between the parties. They referred to Snowden vs. Dorsey, 6 Harr. & Johns. 114. Thompson vs. M'Kim, ib. 327, and Oehler vs. Walker, 2 Harr. & Gill, 326, 329.

Moale and R. N. Martin against the motion, referred also to Snowden vs. Dorsey, and Thompson vs. MKim, and to Strike vs. M'Donald, 2 Harr. & Gill, 191.  

JUDGES:
The cause came on to be argued before EARLE, ARCHER and DORSEY, J.  

OPINIONBY:
DORSEY 

OPINION:

 [*308]  DORSEY, J. delivered the opinion of the court.
A motion being made to dismiss the appeal to this court, on the ground, that the Chancellor decided nothing in controversy between the parties which can properly form the basis of an appeal; to [**67]  present a view of the question, but few of the facts contained in the record need be stated. The appellee sought to recover certain leasehold and personal property, with the rents and profits arising therefrom. The right to such recovery being resisted by the defendants, and much testimony in relation thereto, being taken under commissions issued for that purpose; after the case had been argued, the Chancellor, in his explanatory or introductory remarks to what he was then about to order, discusses at great length many rules and principles of equity and a great variety of facts, all of which he considers clearly in favour of the appellee, and announces his intention at some future time to decree accordingly: and to enable him to do so, he passed the following order, viz: (See the order ante, p. 307.)
From this proceeding of the Chancellor, the present appeal has been prosecuted; and the only question submitted to our consideration is, does this order so settle or materially affect all or any of the rights or interests in controversy between the parties, as to make it a decretal order from which an appeal would lie agreeably to the provisions of the acts of Assembly of 1785, ch.  [**68]   72, and 1818, ch. 193? We are clearly of opinion that it does not. To ascertain what has been decided by the Chancellor, we must look to the order itself. If its expressions be explicit, unequivocal, we need search no further for its import; but must give it that interpretation which it bears upon its 

 [*309]  face. If its construction be ambiguous; then, as the best key to its exposition, we must refer to the introductory remarks of the Chancellor upon which it was founded. In the present order there is no doubt, no ambiguity; and its operation cannot be enlarged by the prefatory observations with which it is connected. Indeed, they are in perfect accordance with its literal, obvious meaning; and demonstrate, that all which the Chancellor designed to adjudicate, was, that the auditor should state certain accounts indispensable to the determination of the questions in litigation. Such an order is a mere preparative to the decisions of the cause; and not decretal. Tis true the Chancellor, in considering this case, has discussed all the matters both of law and fact, which he deemed in any wise involved in the decree, eventually to be pronounced; and has distinctly declared [**69]  what he intends to decree. But his intentions form no ground for an appeal: he may abandon or change them ad libitum; until carried into effect, no injury can result from them. It is only, from what he has done, and not from what he intends to do, that an appeal will lie. All that he has done is to direct an audit: every disputed right and interest of the parties remains undetermined; and is, by the express declaration of the Chancellor, to be settled by his future decree. Until such decree be passed, upon application a commission to take further testimony might issue, an unquestionable title to the relief prayed for might be made out. If we now sustain the jurisdiction we are called on to exercise, and, in accordance with the appellants views, dismiss the appellees bill of complaint: we deprive him of all such opportunity of strengthening his claims for relief; we in fact become a court of original not of appellate judicature. We usurp the authority of the Chancellor, and reverse decrees which he never did make, and perhaps never would have made. Such a proceeding is utterly inconsistent with the character and attributes of a Court of Appeals.
But reasoning upon [**70]  this subject is unnecessary: the question is put to rest by the authority of Snowden et al vs. Dorsey et al. 6 H. & J. 114: a case not distinguishable from that now before us. There the Chancellor upon a bill filed for the conveyance 

 [*310]  of land, ordered an account to be taken of the rents and profits; and in the statement of his views introductive of that order pronounced his opinion (as here) that the complainants claim to relief had been established. Yet, upon an appeal from such order, after argument, and a thorough examination of the practice and decisions upon the subject, this court dismissed the appeal, as being prematurely taken to an order, not decretal.
It was urged in the argument of the appellants counsel, that the right of appeal in this case was fully established by the doctrine settled in Thompson vs. M'Kim, 6 H. & J. 302. But the cases are in no wise analogous. There, as is justly observed by the Chancellor, to warrant the issuing of the order, the facts must be "either admitted or so established as to be open to no further controversy at any subsequent stage of the proceedings; and the party making the motion for such order [**71]  must shew that he has an interest in the money called in; and that he who holds it in his possession, has no equitable right or title to it whatever." Here to justify the order for an audit, no such conclusive establishment of facts is indispensably necessary. There material and irreparable injury was done by the order, let the subsequent decree of the Chancellor be what it might, or although no future decree be ever made. Here no material injury is inflicted on the appellants unless followed by a decree; and that decree too against them. Here the order is not decretal or final as to the rights or interests of the appellants. There the order is not only decretal, but in effect final upon the rights and interests of the appellants, and needed not the aid of any future decree or order upon the subject. Ex natura rei, the granting the order to bring the money into court, adjudicated on every right and interest which the appellant claimed. In no future order or decree was it necessary to name or even refer to him; as to all subsequent proceedings, he was no longer a necessary party in court. All that remained to be done in the cause was, an order for the distribution, among the creditors [**72]  of Heyland of the money brought into court.

 [*311]  Strong efforts were made in the argument to distinguish this case from that of Snowden et al. vs. Dorsey et al. founded upon an expression in the courts opinion, in Thompson vs. M'Kim, stating that the order passed in Snowden et al. vs. Dorsey et al. "bore no impress of the Chancellor's judicial opinion upon the merits of the case." The order, it was contended, in the case at bar, did bear such an impress. But the weight of the argument rests upon a misconception of this expression of the court. They did not mean to say, that the introductory remarks to the order in Snowden et al. vs. Dorsey et al. bore no impress of the Chancellor's opinion upon the merits of the case; because the reverse is most palpably the fact: it does bear the impress of his opinion: but not of his "judicial opinion." The impress of the Chancellor's "judicial opinion," in the sense in which the court have used it, being synonymous with, what he has adjudged or decreed.
APPEAL DISMISSED, BUT WITHOUT COSTS.